THE LAW OF

THE LAND:
A HISTORY OF THE
SUPREME COURT
COURSE GUIDE

Professor Kermit L. Hall

UTAH STATE UNIVERSITY
 The Law of the Land:
A History of the Supreme Court
Professor Kermit L. Hall
Utah State University

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 The Law of the Land:
A History of the Supreme Court
Professor Kermit L. Hall

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 Course Syllabus

The Law of the Land:

A History of the Supreme Court

About Your Professor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Lecture 1 The Judicial Power, Jurisdiction, and the

Ages of the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Lecture 2 The Establishment of Judicial Review:

Marbury v. Madison (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Lecture 3 Privilege and Creative Destruction: Charles River

Bridge v. Warren Bridge (1837) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Lecture 4 Equality, Slavery, and the Supreme Court:

Dred Scott v. Sandford (1857) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Lecture 5 Native American Sovereignty and the Constitution:

Lone Wolf v. Hitchcock (1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Lecture 6 Liberty to Contract in the Industrial Age:

Lochner v. New York (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Lecture 7 Clear and Present Danger, the First Amendment,

and Total War: Abrams v. United States (1919) . . . . . . . . . . . . . . . . . .40

Lecture 8 A Switch in Time?: West Coast Hotel v. Parrish (1937) . . . . . . . . . . . .46

Lecture 9 Japanese Internment and Total War:

Korematsu v. United States (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . .53

Lecture 10 Simple Justice: Brown v. Board of Education

of Topeka (1954, 1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60

Lecture 11 Abortion, Women, and Equality: Roe v. Wade (1973) . . . . . . . . . . . . .67

Lecture 12 Presidential Immunity and Watergate:

United States v. Nixon (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74

Lecture 13 The Boundaries of Discrimination: Regents of the

University of California v. Bakke (1978) . . . . . . . . . . . . . . . . . . . . . . . .80

Lecture 14 The Ten Greatest Justices in the

History of the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

Other Important Decisions of the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . .92

Applicable Portions of the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96

Supreme Court Trivia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99

Justices Appointed by President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100

Glossary of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102

Photo courtesy of Utah State University

About Your Professor

Kermit L. Hall
Kermit L. Hall was president of the University at Albany (State University of
New York), past-presdient of Utah State University, and Professor of History.
He held an undergraduate degree from the University of Akron, a Ph.D. from
the University of Minnesota, and an MSL from Yale Law School. President
Hall published widely in the fields of American constitutional and legal history,
including works entitled The Politics of Justice: Federal Judicial Selection in
the Second American Party System (1979) and The Magic Mirror: Law in
American History (1989). He edited or co-edited seventeen other books,
including The Oxford Guide to Supreme Court Decisions (1999). He was the
editor-in-chief of the award-winning Oxford Companion to the Supreme Court
of the United States (1992) and the Oxford Companion to American Law
(2002), and co-editor of Law and American History: Cases and Materials
(1998). Dr. Hall held fellowships from the National Endowment for the
Humanities, the American Council of Learned Societies, the American Bar
Foundation, and the Fulbright Education Foundation. The American Library
Association bestowed the James Madison Award on him in 1999 for his ser-
vice on the five-member John F. Kennedy Assassination Records Review
Board, to which he was appointed by President Bill Clinton and confirmed by
the Senate. He was also a member of the Advisory Commission of the
Standing Committee on Public Education of the American Bar Association.
President Hall passed away in August 2006.

4
 INTRODUCTION
The judiciary in general and the Supreme Court of the United States in par-
ticular represent the republic’s most unusual and least understood branch of
government. It is at once accessible and mysterious. Unlike the executive
and legislative branches, the high court, through its justices, marches to an
overtly legal drummer, one that demands there be cases and controversies,
there be lawyers who function as adversaries, and that all arguments be
made in open court. On the other hand, its justices, unlike the president and
members of Congress, are appointed and serve during good behavior. They
enjoy a degree of independence from the direct winds of politics, and this
truly sets them apart. Moreover, the justices, while they hear cases in public,
decide them in private conferences that they alone attend. Not even their
trusted clerks penetrate one of the most secret redoubts of American govern-
ment. Yet no one would dispute that the justices, through their actions as
interpreters of constitutional law, also shape and are shaped by politics. In
the end, the Court is a living, breathing institution, one subject to the press of
public opinion yet removed from its direct impact, one whose members have
as often as not either been vilified or praised for both the quality of their legal
reasoning and the political impact of their decisions.
This course is about the high court, its justices, its traditions, and, most
importantly, its impact on the American Republic, not only today but over the
previous two centuries. During these centuries, the Court established three
critical principles: judicial independence, judicial review, and judicial sover-
eignty. The first meant that the Court was, at least in theory, free from direct
political attack by the other branches. The second provided that the justices
could overturn, on constitutional grounds, decisions made by the other
branches and by state courts, executives, and legislators. And, third, that
what the Court said the Constitution meant was final; the justices were sover-
eign in their interpretation of the nation’s ruling document.
This course provides a broad guide to the history and current operation of
the Court. The emphasis throughout is on the relationship of legal change to
social change, on the concept that, in many ways, the Court can be viewed
as a continuing constitutional convention, and on the ways in which political
figures have often tried to shift the costs of deciding controversial issues from
themselves to the justices. And, of course, about the willingness, sometimes
to the detriment of the Court, of the justices to accept just such an invitation.

5
 Lecture 1:
The Judicial Power, Jurisdiction,
and the Ages of the Supreme Court

The Suggested Reading for this lecture is Robert G. McCloskey’s The

American Supreme Court.

Introduction
This lecture introduces the essential features of the United States Supreme
Court. It pays particular attention to the role of the Court in the context of the
Constitution, its jurisdiction, its composition and operation, its justices, the
major phases of its development over the past two centuries, and its role as a
mirror of changing American society.
III. The High Court Is at Once the Least and the Most Accessible
Branch of Government.
A. Unlike the executive and the legislative branches, the Supreme Court
must explain its most important decisions in writing.
B. Moreover, the justices reach these decisions through a process that
involves open argument in court by the parties, the opportunity for the
justices to raise questions to the counsel that is before them, and regu-
lar reports by the media.
C. Yet, the Court is also among the least open of the branches of the
American government since it reaches its positions through highly con-
fidential meetings, called conferences, in which the justices discuss and
argue the cases before them, out of ear shot of the public. Indeed, the
justices have adopted rules that preclude even their clerks from attend-
ing these meetings.
D. We know about events in some of these conference sessions only
through the fragmentary notes that a few of the justices have left behind.
E. Moreover, the justices are purposefully insulated from direct political
pressures.
1. They serve during good behavior.
2. They are appointed by the president with the advice and consent of
the Senate.
3. They do not have to stand for election.
4. Their salaries cannot be diminished while they are in office.
5. The decision about whether they stay on the bench, even if affirma-
tive, is theirs alone.
LECTURE ONE

6. Often what the justices write in their opinions is framed in legal and
constitutional ways, which are sometimes difficult for the average
person to grasp.

6
III. The Court Is Distinctly American in Character.
A. Alexis de Tocqueville, a French visitor to America during the early
nineteenth century, wrote a long treatise on the new nation,
Democracy in America.
B. Tocqueville’s most impressive insights involved the judiciary.
C. He noted that even then, to use his words, “I am unaware that any
nation on the globe has hitherto organized a judicial power in the same
manner as the Americans . . . A more imposing judicial power was
never constituted by a people.”
D. Only a few other courts in the world have powers in scope and opera-
tion similar to that of the American Supreme Court.
E. The history of the Court, however, reminds us that it has not always
been the powerful institution it has become.
III. The Constitution Provides for the Court in Article III.
A. The Supreme Court is a creature of the Constitution itself and one of
the most impressive, yet least debated, new institutions to come from
the Philadelphia Convention of 1787.
B. Among the reasons that the delegates gathered in Philadelphia was a
concern that the idea of the rule of law was under serious threat.
C. The English had a judiciary, but its judges did not hold tenure during
good behavior; instead, they were effectively the servants of the Crown.
D. During the colonial era, many of the colonies had courts of their
own, but the final authority in the Empire on legal matters was the
Privy Council.
E. Moreover, during the period of the Articles of Confederation, which
went into effect in 1783, there was no national judiciary; instead, almost
all judicial matters were carried out by state courts.
F. The framers of the Constitution, whose staunchest advocates came to
be known as Federalists, wanted a strong judiciary to uphold new stan-
dards of national law and to bring some restraint on the perceived
excesses of popular will.
G. Thus in Article III, the delegates established a national judiciary, com-
posed of one Supreme Court and as many lower federal courts as
Congress felt were required, to interpret law.
H. The new Supreme Court was given a very limited original jurisdiction,
and its appellate jurisdiction was to be established by the Congress.
I. But Article III did provide that the federal courts in general and the
Supreme Court in particular extended to “all Cases, in Law and Equity,
arising under the Constitution, the Laws of the United States, and
Treaties . . . to Controversies to which the United States shall be a
Party;—to Controversies between two or more states; [between a State
and Citizens of another State] between Citizens of different States . . .”
J. The crucial purpose of Article III was not to limit the courts, but to
empower them generally and the Supreme Court in particular.

7
 K. Article III gave the Court a power of decision equal to that, in its appro-
priate sphere, of Congress.
L. The Constitution in Article VI established that the Constitution was “the
Supreme law of the land” and, by inference, the Court, which func-
tioned as a legal body, was to be its most important interpreter.
IV. The Constitution Does Not Establish the Number of Justices for
the High Court; Instead, It Leaves that Matter to Be Settled by
the Congress.
A. The Constitution does not even require that a justice be a lawyer.
B. Moreover, unlike the President, members of the Court can be foreign
born persons.
C. Today, the number of justices stands at nine, three more than its original
number in 1789. For a brief period during the Civil War, it was eight.
IV. The Most Important Part of the Court’s Business Now and
Historically Has Been Exercised Through Its Appellate Jurisdiction.
A. From the outset, the Congress did not give the high court all of the
power it might have exercised.
B. For example, through the famous Judiciary Act of 1789, Congress
granted much of the Court’s power through cases and controversies
brought on the basis of diversity jurisdiction rather than from the “aris-
ing under” clause.
C. The way a case gets to the Court today typically involves a writ of cer-
tiorari. A petitioner comes to the Court asking that it issue such a writ
so that the case can be heard.
D. Today, there are about five thousand petitions for “cert” sent to the
Supreme Court. Only a handful—about 5 percent—of these are accept-
ed. The others are usually dismissed, almost always without a written
comment. When that happens, the law stands as it was before, and for
that reason a denial of writ of certiorari amounts to a decision. Even
when accepted for review, the Court may not issue a formal opinion but
simply issue what is called per curium opinion.
E. The modern Court has, therefore, significant control over its docket, but
such was not always true.
F. Before passage of the Judiciary Act of 1925, most of the cases that
came before the high court were ones the Court was obligated to
review; that is, it had little discretion to do otherwise.
G. The expansion of this discretionary jurisdiction has meant that the
Court is better able to manage its caseload.
H. Because it now has such discretion over its docket, the Court can pick
and choose the cases it wishes to hear, and that means that its rulings
LECTURE ONE

have the potential to shape broad areas of public policy, such as abor-
tion and the rights of criminal defendants. In short, the Court has
emerged as a tribunal of constitutional and statutory interpretation
rather than just a court to resolve disputes among parties making com-
peting claims under the Constitution.

8
 I. The Court has also developed certain rules that shape the kinds of
cases it will accept or decline.
IVI. The Court Is More than a Legal Institution; It Is a Hybrid Political,
Social, Economic, and Cultural Institution.
A. Alexis de Tocqueville captured the significance of the Court as much
more than a legal institution when he observed: “Scarcely any political
question arises in the United States that is not resolved, sooner or
later, into a judicial question.”
B. That willingness on the part of Americans generally, and their political
leaders especially, to transform political disputes—whether over slav-
ery, the hours of work of men and women, the practice of segregation
by race, or abortion—into constitutional controversies has made the
Court more than just a legal institution.
C. It has, in fact, become something of a hybrid, one that acts and oper-
ates like a court, but whose decisions have important political, social,
economic, and cultural consequences.
D. The Court’s decisions, then, are also a reflection of society and, as the
nature of American society and politics has evolved, so too has the
docket and the constitutional agenda of the high court.
E. In the nineteenth-century issues involving First Amendment rights to
speak, assemble, and pray, for example, drew almost no attention
from the Court; however, in the 20th century, these and other related
issues of civil liberties and civil rights have come to dominate the
Court’s work and its impact.

VII. The United States Has had Only One National Constitutional
Convention, and One Explanation for this Is that the Supreme
Court Has Itself Become a Continuing Constitutional Convention,
Adjusting and Modifying the Ruling Document to Suit
Changing Needs.
A. In the process, of course, the Court, which Alexander Hamilton
described in Federalist #78 as the “least dangerous branch” to the lib-
erties of Americans, has emerged as one of the most powerful institu-
tions in the nation.
B. To become so, the Court has had to establish the practice of judicial
review, develop the concept of judicial independence, and foster the
concept of judicial sovereignty.
Summary
The Court has become America’s on-going Constitutional Convention. Many
Americans expect the Court to adjust the Constitution, an 18th-century docu-
ment, to accommodate our modern lives.

9


FOR GREATER UNDERSTANDING

Questions

1. What is the role of the Court in the context of the Constitution?

2. What is the most important role of the Supreme Court in the daily lives
of Americans?
3. Who monitors the work of the Supreme Court?

Suggested Reading

McCloskey, Robert G. The American Supreme Court. Chicago: University of

Chicago Press, 2000.

Other Books of Interest

Hall, Kermit L. The Oxford Companion to American Law. New York: Oxford
University Press, USA, 2002.
———. The Oxford Companion to the Supreme Court of the United States.
New York: Oxford University Press, USA, 1992.
Hall, Kermit L., ed. The Oxford Guide to United States Supreme Court
Decisions. New York: Oxford University Press, USA, 2001.
Schwartz, Bernard. A History of the Supreme Court. New York: Oxford
University Press, USA, 1994.
Starr, Kenneth W. First Among Equals: The Supreme Court in American Life.
New York: Warner Books, 2002.
LECTURE ONE

10
 Lecture 2:
The Establishment of Judicial Review
Marbury v. Madison (1803)

The Suggested Reading for this lecture is Stanley I. Kutler’s Privilege

and Creative Destruction: The Charles River Bridge Case.

Importance of Marbury v. Madison

This case is paramount because it represents the first time the Supreme
Court exercised the power to invalidate a federal law, thus making it an equal
partner with the other branches of government.
The Plaintiff
William Marbury was appointed for a position as justice of the peace in the
District of Columbia by outgoing president John Adams. He did not receive
his commission before new President Thomas Jefferson and the Jeffersonian
Republicans assumed office and repealed the Judiciary Act of 1801, which
had created Marbury's judgeship. He sued the new Secretary of State, James
Madison, for failure to deliver the commission.
The Defendant
James Madison was Secretary of State. He refused to deliver the commis-
sion to Marbury.

Introduction
One of the central problems for the new Supreme Court was to establish its
authority to interpret acts of the federal Congress and state legislatures and
courts in light of the Constitution. The power of judicial review is not given
explicitly to the high court, but it is derived in a variety of ways from a textual
and structural reading of the new Constitution and from historical practices.
The exercise of judicial power became a subject of heated political controver-
sy in the early Republic, with the new Jeffersonian Republican Party seeking
to limit the Court’s authority and the outgoing Federalist Party attempting to
expand it. Politics and constitutional dispute merged in the famous case of
Marbury v. Madison, 5 U.S. 137 (1803) and resulted in one of the high court’s
most important and enduring rulings about judicial power. The case was
argued on February 11, 1803 and decided February 24, 1803 by a vote of 5
to 0. Chief Justice John Marshall wrote the opinion for the Court.
III. The Background of Marbury v. Madison (1803).
A. President John Adams appointed William Marbury and three others
(Robert Townsend Hooe, Dennis Ramsey, and William Harper) to be
justices of the peace in the District of Columbia.
B. Marbury and the others were appointed under the Judiciary Act of
1801, a measure that combined political (creating more judgeships and
appointing Federalists to them before Adams went out of office) and

11
 legal goals (reforming the federal courts by relieving Supreme Court
justices of the trying chores of riding circuit and appointing circuit court
judges to take their place).
C. John Marshall was the Secretary of State, and it was his responsibility
to deliver the commission to Marbury, a task that he did not complete
before being appointed Chief Justice by President Adams. Marshall
was notoriously disorganized, and it is likely that the commissions were
simply lost in the hurried efforts at the end of the administration to
deliver them.
D. Marbury then demanded that the new Acting Secretary of State, Levi
Lincoln, deliver them, but he refused to do so as did James Madison, a
Republican selected by President Thomas Jefferson to be the perma-
nent Secretary of State.
E. Marbury then turned to the Court, with its new Federalist Chief Justice,
and asked the Court, under its original jurisdiction, to issue a writ of
mandamus (a legal document that directs a government official to do
or not do a certain act) against Secretary of State Madison to deliver
the commission.
F. At the same time, the new Jeffersonian Republican Party was busy
undoing the Judiciary Act of 1801 with the Judiciary Act of 1802, which
ordered the justices to go back on the circuits and also abolished the
circuit court judgeships.
G. Moreover, the Jeffersonian Republicans, in a clear message to the
Supreme Court, altered the date of the Supreme Court terms, thereby
delaying hearing Marbury’s case until February 1803.
H. The Republicans were mounting a wholesale attack on the federal judi-
ciary, which they believed the Federalists had packed with partisan
supporters who would frustrate their political program through the
power of the judiciary.
III. The Social, Political, and Constitutional Issues in Controversy.
A. The Jeffersonian Republicans, especially a radical element in the
House of Representatives, wanted to curtail the power of the federal
courts for two reasons: first, the courts were too strongly nationalist for
the state rights position of the Republicans, and, two, the judges
appointed by the Federalists were viewed as impediments to the eco-
nomic programs of the Republicans.
B. Marbury was seeking to have the Court act under its original jurisdiction,
which reads, in Article III, section 2: “In all Cases affecting Ambas-
sadors, other public Ministers and Consuls, and those in which a State
shall be a Party, the Supreme Court shall have original jurisdiction.”
C. The first Congress in the Judiciary Act of 1789 used this constitutional
LECTURE TWO

authority to craft section 13, which provided that Congress could autho-
rize the Court to issue a mandamus writ.
D. Secretary of State Madison and President Jefferson took the position
they could not agree to respond to the writ, since doing so would mean
that they would acquiesce to the authority of the Supreme Court.

12
 E. There were three issues before the Court: one, did Marbury and his
associates have a right to their commissions? Two, if such a right exist-
ed and it had been violated, did the laws of the United States afford a
remedy? And three, if they did offer a remedy, was it in the form of a
mandamus issued by the Supreme Court?
III. The Arguments Before the Court and Who Made Them.
A. Secretary of State James Madison refused to appear before the Court,
although two State Department clerks did testify, as did Levi Lincoln,
who had been acting Secretary of State between the time that Marshall
left and Madison came into office. In effect, however, the Jefferson
administration had no legal representation before the Court, underscor-
ing its position that the justices had no authority to hear the case.
B. Charles Lee of Virginia represented Marbury. He argued that the Court
had the authority under section 13 to issue the writ and that since
President Adams had acted officially to appoint Marbury and the others,
they were being denied a property right–the office of justice of the
peace–that the government could not withhold from them.
IV. The Decision of the Court.
A. The Court was unanimous (5 to 0), with Marshall speaking for it.
B. Marbury and the others were entitled to their commissions, and
Madison had wrongfully withheld them.
C. A writ of mandamus was an appropriate remedy at common law, but it
was not available under section 13 of the Judiciary Act of 1789 because
that provision conflicted with Article III’s grant of original jurisdiction.
D. Congress had incorrectly granted the mandamus power to the
Court as part of its original jurisdiction and therefore section 13 was
held unconstitutional.
E. Marshall concluded, “the particular phraseology of the Constitution con-
firms and strengthens the principle, supposed to be essential to all writ-
ten constitutions, that a law repugnant to the constitution is void; and
that courts, as well as other departments, are bound by the instrument.”

The Composition of the Supreme Court

at the Time of Marbury v. Madison

The Court had five members at the time; Chief Justice John Marshall and
Associate Justices William Patterson, Bushrod Washington, Samuel
Chase, and Alfred Moore.
All of the justices were Federalists appointed by either George Washington or
John Adams.

13
 IV. The Impact of the Decision.
A. The decision was an example of judicial self-restraint in the face of what
Marshall described as an arbitrary denial of a property right. In that
regard, the decision preached respect for property rights to Jefferson.
B. The decision did affirm the power of the Supreme Court, however, to
overturn a law of Congress on constitutional grounds.
C. Marbury was not the first case to enunciate the principle of judicial
review; that had been done in state courts and lower federal courts, but
Marshall’s was the first statement of the doctrine by the Supreme
Court. The Chief Justice justified its use on the basis of limited govern-
ment, the legal interpretation of a written constitution, and the sanctity
of the rule of law.
D. These arguments had been anticipated also in Sir Edward Coke’s opin-
ion in Dr. Boham’s Case (1610), in James Otis’s arguments in the Writs
of Assistance Case in Massachusetts in 1761, and, perhaps most
importantly, in Alexander Hamilton’s Federalist #78, which Marshall
drew on extensively.
E. Marshall stressed the duty of judges to apply the law to cases before
them, and this reasoning meant that the life, liberty, and property of citi-
zens depended upon the exercise of judicial review as a constitutional
check on legislative discretion.
F. Only one other time before the Civil War did the Supreme Court over-
turn an act of Congress, in what is called “coordinate branch” judicial
review, and that was in Dred Scott v. Sandford (1857).
G. However, the Supreme Court did use judicial review far more exten-
sively against statutes and judicial decisions of the states, establishing
the authority of the high court to interpret the Constitution conclusively
against state legislation in McCulloch v. Maryland (1819). The justices
concluded that acts of the states are limited by the Supremacy Clause
of the Constitution in Article VI, which makes the Constitution the
supreme law of the land. Since the Supreme Court is the highest court
to interpret federal law it makes its judgements about the constitutional-
ity of state actions final.
H. The subordination of state law to the federal Constitution through judi-
cial review is the linchpin of the Constitution.
Summary
Marbury is one of the fundamental judicial opinions of American history and
one of the most strategically important decisions of the high court in forging
its dominant position in interpreting the Constitution. The decision established
the role for the Court in maintaining constitutional limitations on legislative
action; it established a rationale for subjecting Federal statutes to constitu-
LECTURE TWO

tional examination; it admonished judges to abide by constitutional norms;

and it ironically recognized the limited original jurisdiction of the Supreme
Court. In short, by refusing to accept additional powers of original jurisdiction,
Marshall positioned the Court to become far more influential in hearing cases
on appeal, which became its principal role.

14


FOR GREATER UNDERSTANDING

Questions

1. If the Supreme Court issued a writ of mandamus in this case how would
they have enforced it?
2. What power did the Court surrender and what power did the Court gain?
3. What are the differences in the Supreme Court of the 1790s and the Court
of 1803? And the Court of today?

Suggested Reading

Clinton, Robert Lowry , Marbury v. Madison and Judicial Review. Lawrence,

KS: University Press of Kansas, 1989.
Nelson, William E. Marbury v. Madison: The Origins and Legacy of Judicial
Review. Lawrence, KS: University Press of Kansas, 2000.

Other Books of Interest

Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the
Bar of Politics. New Haven: Yale University Press, 1986.
Dewey, Donald Odell. Marshall Versus Jefferson: The Political Background of
Marbury v. Madison. New York: Knopf, 1970.
Kahn, Paul W. The Reign of Law: Marbury v. Madison and the Construction
of America. New Haven: American History Association, Yale University
Press, 1997.
Stites, Francis N. John Marshall: Defender of the Constitution. Boston: Little,
Brown, 1981.
Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional
Interpretation to Judge-Made Law. New York: Basic Books, 1986.

15
 Lecture 3:
Privilege and Creative Destruction
Charles River Bridge v. Warren Bridge (1837)

The Suggested Reading for this lecture is Stanley I. Kutler’s Privilege

and Creative Destruction: The Charles River Bridge Case.

Importance of Charles River Bridge v. Warren Bridge

In balancing the rights of private property against the need for economic
development, the Court found that the community interest in creating new
channels of travel and trade had priority.
The Plaintiff
Proprietors of the Charles River Bridge had originally received a charter
from the Massachusetts legislature to build the Charles River Bridge and col-
lect tolls for forty years after which the bridge would revert to public owner-
ship. Their argument was that they had received an “exclusive” charter pro-
tected by Article I, Section 10 (the contracts clause) of the Constitution.
The Defendant
Proprietors of the Warren Bridge were commissioned in 1828 when the
Jacksonian Democrats took over the Massachussett’s legislature to complete
a competing bridge one hundred yards away from the original Charles River
Bridge. The Warren Bridge Company claimed that since Boston and
Charlestown had grown, the old bridge was no longer sufficient to meet the
needs of the community.

Introduction
This lecture addresses one of the most important issues facing the pre-Civil
War Supreme Court: the extent to which private property rights had to yield to
the use of improved technology in the public interest. The case of Charles
River Bridge v. Warren Bridge 36 U.S. 420 (1837) captured this struggle, but it
also reflected the changing use by the high court of its power of judicial review
and the interrelationship of legal principles, governmental power, and econom-
ic progress. The case posed the interesting issue of whether the public inter-
est was better served by fostering new opportunities in the marketplace or by
securing existing ones. The case was argued on March 7–11, 1831, reargued
January 19–26, 1837 and decided on February 12, 1837 by a vote of 4 to 3.
Chief Justice Roger B. Taney wrote for the majority with Associate Justices
John McLean, Joseph Story, and Smith Thompson in dissent.
LECTURE THREE

III. The Background of Charles River Bridge v. Warren Bridge (1837).

A. The Massachusetts legislature in 1785 incorporated the proprietors of
the Charles River Bridge to build a single-lane bridge that would con-
nect Charlestown and Boston.

16
 B. The legislation authorized the bridge company to collect tolls on the
bridge for a period of forty years and to indemnify Harvard College for
the loss of revenues from a ferry which had provided service across the
Charles River.
C. The initial grant to provide public transportation across the river dated
to 1640, when the colonial legislature had authorized newly created
Harvard College to operate a ferry between Boston and Charlestown,
and the proprietors of the Charles River Bridge were given the authority
to build a bridge in place of the ferry, which was deemed inadequate.
D. The Charles River Bridge was an immediate success, and by the
1820s its owners had an income of $20,000 a year, property value of
$280,000, and an appreciated value in their stock of 300 percent.
E. But the need for more bridges grew increasingly important, so much so
that in 1792 the legislature authorized another bridge, the West Boston
Bridge, to cross the Charles River from Boston to Cambridge.
F. In 1828 the legislature authorized a group of merchants from
Charlestown to build a new bridge, the Warren Bridge, that would con-
nect Charlestown and Boston and that would be essentially parallel.
G. The legislature also authorized the Warren Bridge Company to collect
tolls until the expenses of construction had been reimbursed, at which
time the bridge would become free.
H. The proprietors of the Charles River Bridge sought an injunction to stop
the building of the new bridge and claimed that the actions of the legis-
lature threatened to deprive them of their life, liberty, and property
under both the Massachusetts law and the Federal Constitution.
I. The Warren Bridge was an instant success, with the net income from
the bridge twice that of its older competitor.

The Composition of the Supreme Court

at the Time of the Charles River Bridge v. Warren Bridge

Since the original arguments in 1831, three members of the Court had left
either through death (Chief Justice John Marshall and Associate Justice
William Johnson) or resignation (Associate Justice Gabriel Duvall).
They were replaced by three Jacksonian Democrats: Chief Justice Roger B.
Taney and Associate Justices James Moore Wayne and Philip P. Barbour.
The entire Court had a majority of Jackson appointees, which included
Associate Justices John McLean and Henry Baldwin, both of whom had
heard the arguments in 1831.
The three new justices, then, were critical to the outcome of the case, since
they had not been part of the earlier deadlock.

17
 III. The Social, Political, and Economic Issues in Controversy.
A. The case underscored the problem of moving from a traditional legal
environment that spurred private development for the public good by
granting a monopoly versus the advantages created by permitting new
technology to help shape the economy.
B. The issue was whether it was possible to encourage private initiative
without destroying the property rights that the state legislature had pre-
viously created.
C. Underlying this issue was the general question of the scope of a
legislature’s power to change the terms of a grant—in this instance,
essentially a contract– from what they had been understood to be
when established.
D. Finally, the merchants of Charlestown in particular were eager to break
the monopoly of the Charles River Bridge Company and have a larger,
stronger bridge, one that permitted two-way traffic and would increase
the flow of business.
III. Arguments Before the Court.
A. The case was first heard in the Supreme Judicial Court of Massachu-
setts in 1829, and the four judges on that court split evenly.
B. The decision by the Massachusetts court resulted in the dismissal of
the complaint, which then permitted the Charles River Bridge owners to
take the case to the Supreme Court, since they claimed that state law
was in violation of the U.S. Constitution’s contracts clause.
C. The case was heard twice in the U.S. Supreme Court: first, in 1831, but
illnesses on the bench, vacancies, and differences over the scope of
vested property rights resulted in the Court announcing that it could not
reach a decision.
D. In 1837 the case was reargued, this time before a Court dominated by
Jackson appointees, over a period of six days, resulting in one of the
most extraordinary displays of legal advocacy in the Court’s history.
E. Daniel Webster and Warren Dutton appeared for the Charles River
Bridge and relied extensively on the contracts clause and vested rights
arguments that gave primacy to private property interests. They assert-
ed that the Warren Bridge charter violated the state’s contract obliga-
tion to the old bridge company and thus the legislature had destroyed
the owners’ exclusive property in tolls, which was the essence of the
original grant.
F. John Davis and Simon Greenleaf argued for the Warren Bridge
Company that the legislature had not granted the Charles River Bridge
proprietors an exclusive right and that the grant to the Warren Bridge
LECTURE THREE

Company was entirely within the powers of the legislature. If legislative

charters were liberally construed, as counsel for the Charles River
Bridge urged, old charters could be used to impede the development of
new technologies that would help the community, especially in the area
of transportation.

18
 G. There were also political dimensions to the arguments of both sides,
with the Warren Bridge advocates insisting, as did many Jacksonian
Democrats, that monopoly power was being used to extort higher than
necessary tolls that worked to the disadvantage of the workers and
tradesmen of Charlestown who were the victims of the wealthy Charles
River Bridge proprietors.
IV. The Decision of the Court.
A. Chief Justice Taney wrote the opinion for a narrowly divided Court, and
Justice Joseph Story, perhaps the leading legal figure of his time, wrote
the most important dissent. Together, their diverging ideas about legal
principles, government responsibility, and economic progress paralleled
closely the political debates during the era between Jackson and his
Whig Party detractors.
B. Taney found in favor of the Warren Bridge Company by holding that the
legislature, representing the sovereign will of the people, had granted to
the Charles River Bridge the opportunity to collect tolls for a specified
period of time, but that the grant had to be narrowly, not broadly, con-
strued. That meant that the legislature had never given an exclusive
right to build and operate a bridge.
C. Taney held that property rights were sacred, but that the larger purpose
of government was to “promote the happiness and prosperity of the
community; and it can never be assumed, that the government intended
to diminish its power of accomplishing the end for which it was created.”
D. Justice Story’s dissent insisted that the grant to the Charles River
Bridge Company was a form of contract and, as a result, the terms of
the contract should be liberally construed in favor of the company.
Failure to do so, Story warned, would mean that individuals would not
be willing to take the risks necessary to build public improvements and
that the result would be slower not faster progress and the erosion of
individual property rights.
IV. The Impact of the Decision.
A. The decision was a spur to technological development, since it meant
that old forms of technology, based on vested rights, would have
to yield to newer technologies that would be faster, stronger, and
more dependable.
B. The concept of “creative destruction” became one of the hallmarks of
the nineteenth century’s encounter with technology and allowed the
residents of Massachusetts and other states “to avail themselves of the
lights of modern science . . . which are now adding to the wealth and
prosperity, and the convenience and comfort of every other part of the
civilized world.”
C. Corporations immediately seized on Taney’s holding, especially in the
case of railroad promoters, who now expected that state legislatures
would expressly expand the list of inducements (tax exemption, route
monopoly, and such) in order to invest in public projects.

19
 D. The majority opinion was also an example of the way in which the Court
produces incremental change without overturning existing precedent.
E. The decision was one of three during 1837 that broadened areas of
state action and narrowed the nationalism of the Marshall Court.
F. The competing judicial positions in this case remind us of the
sharp differences that existed over the role of the state and
national governments.
Summary
By the late 1830s the Supreme Court was substantially shifting the ground on
which it acted, both doctrinally and in terms of public policy. While the break
from the Marshall era of strong constitutional nationalism was far from com-
plete, it was nonetheless true that the Court was willing to recognize the inter-
ests of the states more fully and, perhaps even more important, to accommo-
date the dramatic surge in economic development by rewarding additional
economic risk-taking.
LECTURE THREE

20


FOR GREATER UNDERSTANDING

Questions

1. How does this decision embody Jacksonian Democratic ideals?

2. When did the law begin to recognize corporations as individuals?
3. What effect does this change in personal property rights have in today’s
world of intellectual property?

Suggested Reading

Kutler, Stanley I. Privilege and Creative Destruction: The Charles River

Bridge Case. Philadelphia: Lippincott, 1971.

Other Books of Interest

Hall, Kermit L. The Oxford Guide to United States Supreme Court Decisions.
New York: Oxford University Press, USA, 1999.
Horwitz, Morton. The Transformation of American Law: 1790–1860.
Cambridge, MA: Harvard University Press, 1976.
Monroe, Elizabeth B. The Wheeling Bridge Case: Its Significance in American
Law and Technology. Boston: Northeastern University Press, 1997.
Seavoy, Ronald. The Origins of the American Business Corporation,
1784–1855. Westport, CT : Greenwood Press, 1982.

Articles of Interest

Newmyer, Kent. “Justice Joseph Story, the Charles River Bridge Case and
the Crisis of Republicanism.” American Journal of Legal History 17
July 1973, pp. 232–245.

21
 Lecture 4:
Equality, Slavery, and the Supreme Court
Dred Scott v. Sandford (1857)

The Suggested Reading for this lecture is Don Edward Fehrenbacher’s

The Dred Scott Case: Its Significance in American Law and Politics.

Importance of Dred Scott v. Sandford

This was one of the more important cases in American constitutional history.
It played a subsequent role in precipitating the Civil War by dividing the
Democratic party along sectional lines; it provided a basis for far-reaching
interpretations of substantive due process; and it stirred deep-seeded emo-
tions in the saga of race relations in the United States.
The Plaintiff
Dred Scott was a slave who had traveled extensively with his owner, Dr.
John Emerson, an Army doctor. Upon the death of Dr. Emerson, he was
transferred to his owner’s widow. He sued for his freedom based on his travel
in and out of the free territories.

The Defendant
John F. A. Sanford (whose name was misspelled as Sandford in the Court’s
records) was a resident of New York state. When, after a three-year delay,
Scott’s case was decided and he was freed, Sanford suddenly owed all of the
back wages. He appealed to the Missouri Supreme Court, which eventually
led to this federal suit.

Introduction
Slavery was the most vexing constitutional issue facing the nation in the
years leading up to the Civil War. The word slavery does not appear any-
where in the Constitution, but key provisions of that document, such as the
three-fifths clause, directly recognized the institution and built it into the
framework of the Constitution. The great compromise over slavery held that
slavery existed as a result of state rather than national law. The Supreme
Court was never asked directly to rule on the constitutionality of slavery;
instead, the most important cases that it heard involved issues of the return
of escaped slaves and the authority of Congress to legislate on slavery in the
territories. This latter issue applied directly to the question of whether slave-
holders could take their property into the territories. The issue reached a con-
stitutional and political crescendo in 1857 when the Court exercised extraordi-
nary judicial power in an attempt to settle the constitutionality of slavery in the
LECTURE FOUR

territories conclusively. The case of Dred Scott v. John F. A. Sandford 60

U.S. 393 (1857) was argued February 11–14, 1856 and December 15–18,
1856 and decided March 6–7, 1857 by a vote of 7 to 2. Chief Justice Roger
B. Taney delivered the opinion for the Court; Justices Benjamin Robbins
Curtis and John McLean dissented.

22
III. The Background of Dred Scott v. Sandford (1857).
A. Dred Scott was a slave born in Virginia who moved with his master to
St. Louis, Missouri in 1833, where he was sold to Dr. John Emerson, an
Army surgeon. Scott traveled widely with Emerson, to and through free
territory in Wisconsin (where he married another slave) and back into
slave territory in Louisiana and Florida.
B. John Emerson died in 1843, and ownership of Dred and Harriet Scott
passed to Emerson’s wife.
C. In 1846, the Scotts brought a law suit for their freedom against Irene
Emerson and won, doing so on then existing Missouri law that held
that a slave who entered free territory and returned to Missouri was a
free person.
D. The case came back to court in 1850. Pending the trial, Scott’s wages
were held in escrow, with the understanding that should he be freed, he
would receive them.
E. During the period leading up to the second trial, Scott was sold by Irene
Emerson, who had married and moved to Massachusetts, to her brother,
John Sanford, a resident of New York state.
F. Scott won in the trial court, but Sanford appealed the decision to the
Missouri Supreme Court, which ruled against him.
G. Scott then, with the help of representatives from the anti-slavery bar,
appealed to the federal circuit court in St. Louis on the grounds that he
was a citizen of the state of Missouri and could, as a result, bring a fed-
eral suit against Sanford for his freedom. Sanford claimed that Scott
was property and the federal government had a responsibility to protect
his property.
H. The federal circuit court jury, on instructions from the judge, applied
Missouri law and ordered Scott returned to Sanford and slavery. Scott
then appealed to the U.S. Supreme Court to decide the question of
whether or not he was a citizen and could sue in a federal court.

The Composition of the Supreme Court

at the Time of Dred Scott v. Sandford

The court was composed of five southern Democrats: Roger B. Taney, John
Archibald Campbell, John Catron, James Moore Wayne, and Peter V.
Daniel; two northern Democrats: Robert C. Grier and Samuel Nelson, a
Whig: John McLean, and a Republican: Benjamin Robbins Curtis.
Five of the justices also had direct experience with slavery, including the
Chief Justice, who was a slaveholder himself.

23
 III. The Social, Political, and Constitutional Issues in Controversy.
A. The case raised the fundamental question of whether a slave taken into
free territory became permanently a free person, even if they were
taken back to slave territory.
B. It also posed the question of whether Congress could legislate with
regard to slavery in the territories.
C. These issues were so constitutionally and politically delicate that the
Supreme Court took the unusual step of having the case argued twice.
III. Arguments Before the Supreme Court and Who Made Them.
A. Montgomery Blair and George T. Curtis, the brother of sitting Supreme
Court Justice Benjamin Robbins Curtis, argued the case for Scott; Henry
S. Geyer, a former Senator from Missouri, and Reverdy Johnson, one of
the era’s most famous lawyers, argued the case for Sanford.
B. Blair insisted that what seemed to be prevailing precedent, the case of
Strader v. Graham (1851), did not apply. In that case, the Supreme
Court had held that a state supreme court alone, and not a federal
court, could decide whether a slave who had reentered slave territory
from free became a slave once again.
C. Geyer, however, insisted that Congress had no authority to exclude
slaveholders’ property from the territories, that the remainder of the ter-
ritory not covered by the Kansas-Nebraska Act should be made sus-
ceptible to slavery as well, and that Scott, as a black who was never
naturalized, could not claim citizenship and therefore could not sue in a
federal court.
IV. The Decision of the Court.
A. The justices struggled to decide the case because of the complex politi-
cal and constitutional issues that it presented and their concern about
the role of the Court in settling such a momentous issue.
B. Initially, a majority of the Court decided to skirt the issue and rely as
heavily as possible on Strader. Justice Nelson composed a short draft
opinion, of five thousand words, but it encountered resistance from
several of the southern Democrats and from the anti-slavery justices,
McLean and Curtis.
C. Justice Wayne of Georgia successfully moved that the Court address
the full issues and the task of writing the opinion fell to Chief Justice
Taney. At the same time, Justice Catron kept President Buchanan fully
informed of developments, so much so that the President in his inau-
gural address, given two days before the Court issued its opinion,
urged the nation to abide by the Court’s decision.
LECTURE FOUR

D. Taney spoke officially for the Court, but every other justice wrote an
opinion and only one, Wayne, concurred with the Chief Justice. Despite
the jumble of opinions, the outcome was clear: Scott lost.
E. Taney’s opinion held that black persons were not and never could be
citizens and, therefore, could not sue in a federal court.

24
 F. Taney went on to note that a person of African descent was “regarded
[by the founding fathers] as beings of an inferior order, and altogether
unfit to associate with the white race.” “[T]hey have no rights,” he con-
tinued, “which the white man was bound to respect,” and that the
framers of the Constitution had intended “that the Negro might justly
and lawfully be reduced to slavery for his benefit.”
G. At that point, Taney might have ended his opinion, but he chose
instead to cover the other issues, most notably the status of slavery
in the territories.
H. Taney declared the Missouri Compromise unconstitutional, which effec-
tively extended the Kansas-Nebraska Act to all of the territory once
covered by that compromise and opened vast new areas to slavery,
potentially including even the existing free states. He also explained
that slave property was as fully protected under the Constitution gener-
ally and the due process clause of the Fifth Amendment in particular as
was any other form of property.
I. McLean and Curtis dissented on different but related grounds, insisting
on the constitutionality of the Missouri Compromise and denouncing
Taney’s blanket, and clearly incorrect, conclusion that blacks could
never be citizens. Indeed, Justice Curtis reminded Taney that not all
blacks had been reduced to slavery and that free black persons, includ-
ing those who had been manumitted, had historically enjoyed a guaran-
tee of rights in some states.
IV. The Impact of the Decision.
A. The decision drove a political wedge between northern Democrats, who
wanted to allow citizens in the territories to decide for themselves
whether they wanted slavery, and southern Democrats, who insisted that
slavery had to be protected fully in the territories. That split resulted in
greater sectional tension and ultimately the disruption of the Union.
B. The decision marked a high water point in the Court’s power that pro-
duced a strong attack on the institution, especially from Republican
presidential candidate Abraham Lincoln, who made clear that he was
not bound by the decision.
C. The decision was the second time that the Supreme Court overturned
an act of Congress, and it represented a new emphasis on the Court
in developing a modern, policy-directed, end-oriented approach to
the Constitution.
D. Taney did assert in the opinion that courts could not be legislatures and
that they should resist moving in cadence with public opinion.
E. Taney’s opinion also underscored the basic reality that the framers in
Philadelphia had constitutionalized slavery and its protection and that
the high court was duty bound to uphold this original decision.
F. Thus, Taney and his opinion were at once forward looking to a judicial
power that would be aggressive and end-oriented but also bound to
the traditional idea that what justices do is to interpret what the

25
 Founders intended.
G. This case was also the first one in which the public had to consider the
consequences of judicial review, since the decision in Marbury v.
Madison (1803) was self-liquidating, but the Court’s actions in Dred
Scott put a prohibition on Congress to act.
H. John Sanford died in an insane asylum two months after Taney read
his opinion; Dred Scott was freed, but lived only sixteen months before
succumbing to tuberculosis.
I. The passage of the Thirteenth and Fourteenth Amendments effectively
overturned the Dred Scott decision.
J. It established the concept of substantive due process of law as a pro-
tection for property rights.

Summary
Only a handful of Supreme Court cases can claim the designation of true
landmarks, points along the path of United States history that genuinely sepa-
rated one constitutional epoch from the next. Dred Scott was such a case, for
demonstrating for the second time that the justices could overturn an act of
Congress, for providing a vivid reminder of problems of some of the justices
colluding with the president about a high court decision, and for the direct,
racist language that it used to protect the institution of slavery. Ultimately, the
Court overreached in its efforts to do so, and during the Civil War and later in
Reconstruction its influence ebbed before the power of the popular branches
of government.
LECTURE FOUR

26


FOR GREATER UNDERSTANDING

Questions

1. What is happening to the slave population of about 4 million during this

time in history?
2. Consider the political climate in 1857. Would Dred Scott have won his case
if he had come up for trial several years earlier?
3. What are the differences in the Supreme Court of the 1790s and the Court
of 1857? And the Court of today?

Suggested Reading

Fehrenbacher, Don Edward. The Dred Scott Case: Its Significance in

American Law and Politics. New York: Oxford University Press, 2001.

Other Books of Interest

Brooke, John T. Short Notes on the Dred Scott Case. Cincinnati, OH: Moore,
Wilstach, Keys & Company, 1861.
Dunne, Gerald T. The Missouri Supreme Court: From Dred Scott to Nancy
Cruzan. Columbia, MO: University of Missouri Press, 1993.
Ehrlich, Walter. They Have No Rights: Dred Scott’s Struggle for Freedom.
Westport, CT: Greenwood Press, 1979.
Fehrenbacher, Don Edward. Slavery, Law, and Politics: The Dred Scott Case
in Historical Perspective. New York: Oxford University Press, 1981.
Finkelman, Paul. Dred Scott v. Sandford: A Brief History with Documents.
Boston: Bedford Books, 1997.
———. An Imperfect Union: Slavery, Federalism, and Comity. 1981.
Hopkins, Vincent Charles. Dred Scott’s Case. New York: Russell &
Russell, 1967.
Kutler, Stanley I. The Dred Scott Decision: Law or Politics? Boston: Houghton
Mifflin, 1967.
Parker, Joel. Personal Liberty Laws (statutes of Massachusetts), and Slavery
in the Territories (case of Dred Scott). Boston: Wright & Potter, Printers,
1961.

27
 Lecture 5:
Native American Sovereignty and the Constitution
Lone Wolf v. Hitchcock (1903)

The Suggested Reading for this lecture is John R. Wunder’s “Retained

by the People”: A History of American Indians and the Bill of Rights.

Importance of Lone Wolf v. Hitchcock

In this case the Supreme Court recognized a near-absolute plenary congres-
sional power over Indian affairs, virtually exempt from judicial oversight. It
allowed the United States to appropriate tribal lands in violation of the treaties
made with the native peoples.

The Plaintiff
Chief Lone Wolf was the tribal chief of the Kiowa Indian tribe. When other
tribes were signing the Treaty of Medicine Lodge Creek, which created a
reservation for the southern Great Plains tribes, he refused because he dis-
trusted the U.S. Although he eventually signed, he then sued in federal dis-
trict court in an attempt to nullify the treaty.
The Defendant
Ethan A. Hitchcock was the Secretary of the Interior in President Theodore
Roosevelt’s administration.

Introduction
Lone Wolf v. Hitchcock, 187 U.S. 535 (1903) is to the Kiowa people in partic-
ular and Native Americans in general what Plessy v. Ferguson (1896) was to
African-Americans and United States v. Ju Toy (1902) was to Chinese
Americans. It was a direct attack on the constitutional and social standing of
an entire class of people and, as important, the basis upon which they had
historically conducted business with the United States. The treaty power
under the Constitution had until the time of Lone Wolf been treated as invio-
lable and the agreements reached between Native Americans and the federal
government as unbreakable instruments of law. Such an approach reflected
earlier decisions of the Supreme Court, most notably in the Cherokee Cases
(1831-1832), which emphasized inherent tribal sovereignty and native lands.
Lone Wolf undid that basic equation. The case was argued 23 October 1902
and decided 5 January 1903 by a vote of 9 to 0. Chief Justice Edward D.
White delivered the opinion of the Court.
III. The Background of Lone Wolf v. Hitchcock (1903).
A. The case involved the Kiowa people, who had left the Black Hills of
LECTURE FIVE

what was to be South Dakota in the late 18th century and moved to
the Great Plains.
B. The Kiowas relied on their diplomatic skills to survive in this
volatile region, and this included agreements made with the United
States government.
28
C. In 1867 the Kiowa and other southern Great Plains tribes joined in a
treaty with the United States government known as the Treaty of
Medicine Lodge Creek that created a reservation between the
Canadian and Red Rivers in southwestern Oklahoma.
D. Two important provisions of that treaty:
1. The first allowed heads of Indian families to select up to 320 acres of
reservation land to own if they so desired.
2. The second was Article 12, which stated, “No treaty for the cession
of any portion or part of the reservation herein described, which may
be held in common, shall be of any validity or force as against the
said Indians, unless executed and signed by at least three-fourths of
all the adult Indian males occupying the same.”
3. However, Chief Lone Wolf refused to sign the treaty with these terms
because he distrusted the U.S.
E. The Kiowa then ranged beyond the reservation described in the treaty,
so a series of hard-fought battles between them and the U.S. Army
took place, with the Army ultimately able to force them back on to
reservation lands.
F. The reservations proved destructive of Kiowa culture and its economy,
especially in the form of the Dawes or General Allotment Act of 1887.
1. That measure allowed reservation lands to be divided and “allotted”
to individual Indians who were to farm and live on them, a style of
existence entirely contrary to what they had known.
2. Lone Wolf, the tribal chief, not only opposed allotment but he refused
to cooperate with delegations sent from Washington to force the allot-
ment process forward. Lone Wolf contended that federal authorities
had failed to gather the consent of three-fourths of the male members
of the tribe, just as the Treaty of Medicine Lodge Creek provided.
3. Lone Wolf, instead, now insisted that the terms of the treaty, which
he had not signed, should be sustained.
G. Lone Wolf ultimately did sign an agreement that he thought would
maintain Kiowa lands without having to endure the allotment process;
however, the United States government interpreted the agreement dif-
ferently and distinctly to the disadvantage of the Kiowa people.
H. Lone Wolf wanted schools and houses built, but he also wanted to
retain control of tribal lands.
I. After seven years of discussion, Congress accepted the agreement in
1900, an agreement against which Lone Wolf had vigorously lobbied
once he came to understand the measure would put the allotment
scheme in place and take tribal lands.
J. Lone Wolf sued in federal district court, where he lost, and then
appealed. Both courts told Lone Wolf that Congress was entirely free in
using its powers to take any land, notably that of Native Americans, and
that “lands and reservations are held by the Indians subject to the con-
trol and domination of the United States,” and that the disposition of
tribal lands was an entirely political matter.

29
 III. The Social, Political, and Constitutional Issues in Controversy.
A. The Kiowa people and their counterparts in other tribes faced often
harsh conditions living on the reservations, which broke down their cul-
tural patterns.
B. The Kiowa people had believed they were bargaining in good faith with
the United States, but it was clear that agents for the United States had
used questionable tactics to gain agreement to the allotment process.
C. Until now the constitutional law involving native peoples had stressed
the inherent sovereignty of the tribe and the strong rights of these peo-
ple to their lands.
D. There was the related matter of whether decisions about Native people
were subject to review by the courts.
III. The Arguments Before the Court and Who Made Them.
A. Lone Wolf was represented by Hampton L. Carson, a professor of law
at the University of Pennsylvania.
B. Carson insisted that the proposed allotment law for the Kiowa people
was unconstitutional on two grounds:
1. First, the agreement violated the Medicine Lodge treaty, even though
the treaty explained what the relationship should be.
2. And, the agreement allowed only a maximum of one dollar an acre,
but in fact the prices for these lands were and remained higher.
C. Future Supreme Court Justice Willis Van Devanter argued for
Secretary of Interior Hitchcock.
D. Van Devanter insisted that Native people were wards of the state and
formed a domestic dependent nation over which Congress had near
plenary power.
IV. The Decision of the Court.
A. The Court was unanimous, 9 to 0, with Justice White writing the opinion.
B. The agreement reached with the Kiowas had not denied them or any
individual member of the tribe any property right and that due process
of law had not been violated.
C. White also held that Congress had plenary power over Indian lands “by
reason of its exercise of guardianship over their interests.”
D. This power was political in nature and therefore not subject to review
by the Supreme Court.
E. The only limitation on the actions of the United States toward these
Native peoples was the requirement that they always be guided by
“perfect good faith.”
LECTURE FIVE

IV. Impact of the Decision.

A. The decision was a devastating blow for Native Americans, since it
meant that the single most important source for individual and tribal
rights–treaty agreements–were no longer given credence.

30
 B. The Kiowa-Comanche Reservation was divided and abolished.
C. The Kiowa were then concentrated in two counties of southwestern
Oklahoma in what came to be known as Lone Wolf Settlement.
D. In 1960 the Indian Claims Commission paid the Kiowa $2 million for the
abrogation of their treaty rights, but by that time the tribe had come to
endure grinding rural poverty at a level almost unmatched in the rest of
the nation.
E. In the past decade a more enlightened view of the rights of Native peo-
ple has developed, one that suggests that the powers of Congress may
not be as broad as described under Lone Wolf.
F. A federal judge in 1979, reflecting a new attitude toward congression-
al power over the tribes, observed that Lone Wolf was the “Indian’s
Dred Scott.”

Summary
Lone Wolf was one of the most important decisions made by the 20th century
Supreme Court that involved Native peoples. Behind it lurked a series of
assumptions about the cultural and racial inferiority of these peoples, a lega-
cy that remains etched today in the attitudes of many Americans toward
them, and in their continuing position of having their property rights subject to
strong congressional oversight.

The Composition of the Supreme Court

at the Time of Lone Wolf v. Hitchcock

The Court’s nine members were headed by Chief Justice Melville W.

Fuller and included John Marshall Harlan, David J. Brewer, Oliver
Wendell Holmes, Jr., and Edward Douglas White.
Essentially the same group of justices had decided the famous case of
Plessy v. Ferguson (1896), which had introduced the idea of separate-but-
equal into the constitutional law involving segregation by race on public
transportation.
Edward D. White was the son of a slaveholding sugar planter; he was born
and raised in Louisiana. White’s appointment to the Supreme Court was a
surprise. President Cleveland had twice sought to appoint New Yorkers to
replace William Blatchford, who had died; but the New York senators were
Cleveland’s foes, and they exercised senatorial courtesy to scotch the
appointments. Cleveland found a lead-pipe cinch in White since senators
would never disapprove of one of their own.
This was one of the most conservative courts in the nation’s history and one
that had been particularly assiduous, under the doctrine of substantive due
process of law, of protecting the rights of property holders.

31


FOR GREATER UNDERSTANDING

Questions

1. What happened between the Cherokee Cases (1831-1832), which empha-

sized tribal sovereignty and land rights, and 1903, when the Lone Wolf
decision was rendered?
2. How did our nation justify the reparations paid to the Kiowa and other
Indian nations for abrogation of their treaty rights?
3. What does government-to-government mean in context of this case?

Suggested Reading

Wunder, John R. “Retained by the People”: A History of American Indians

and the Bill of Rights. New York: Oxford University Press, USA, 1997.

Other Books of Interest

Brown, Brian Edward. Religion, Law, and the Land: Native Americans and
the Judicial Interpretation of Sacred Land. Westport, CT: Greenwood
Press, 1999.
Clark, Blue. Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End
of the Nineteenth Century. Vol. 5. Lincoln, NE: University of Nebraska
Press, 1994.
Deloria, Vine, and David E. Wilkins. Tribes, Treaties, and Constitutional
Tribulations. Austin: University of Texas Press, 1997.
Lomawaima, K. Tsianina. Uneven Ground: American Indian Sovereignty and
Federal Law. Norman, OK: University of Oklahoma Press, 2001.
Prucha, Francis Paul. American Indian Treaties: The History of a Political
Anomaly. Berkeley: University of California Press, 1997.
Sokolow, Gary A. Native Americans and the Law: A Dictionary. Santa
Barbara, CA: ABC-Clio, 2000.
Wunder, John R. Constitutionalism and Native Americans, 1903-1968. New
York: Garland Publishing, 1996.
LECTURE FIVE

32
 Lecture 6:
Liberty to Contract in the Industrial Age
Lochner v. New York (1905)

The Suggested Reading for this lecture is Paul Kens’s Lochner v. New
York: Economic Regulation on Trial.

Importance of Lochner v. New York

The Court invalidated state reform legislation under the auspices of the “due
process” clause of the Fourteenth Amendment and the “right to contract.”

The Plaintiff
Joseph Lochner was a “boss baker” in Utica, New York who owned several
small shops. In 1902, he was fined for allowing an employee to work more
than 60 hours in one week. He appealed through the court system until it
reached the Supreme Court. Lochner claimed the New York Bakeshop Act
violated the Fourteenth Amendment by denying him life, liberty, or property
without due process of law.
The Defendant
New York. New York States’ Attorney General, Julius M. Mayer, argued that
the police power gave it authority to regulate hours of labor.

Introduction
The Supreme Court at the beginning of the twentieth century confronted the
task of interpreting constitutional law in the context of a rapid transformation
from an agricultural to an industrial market economy. Signs of change dotted
the landscape: the appearance of industrial unions, new state laws designed
to protect workers, the increasing concentration of wealth in the hands of a
few, and the increasing threat posed by industrial monopolies to the small
producer. Lochner v. New York, 198 U.S. 45 (1905) addressed one element
of this transformation, the attempts made by the states through their police
powers (health, safety, morals, and welfare) to address working conditions for
labor. The Court had evolved over the previous two decades an important
new concept–substantive due process of law–designed to protect the “rights”
of workers to the property they enjoyed through their labor. In what was one
of the Supreme Court’s most controversial decisions, the justices struck down
a New York state law regulating the operation of bake shops and in so doing
elevated substantive due process to new and very controversial heights. The
case was argued 23-24 February 1905 and decided April 17, 1905 by a vote
of 5 to 4. Justice Rufus Peckham wrote the opinion for the Court and Justices
John Marshall Harlan and Oliver Wendell Holmes, Jr. dissented.

III. The Background of Lochner v. New York.

A. The economic depression of the 1890s inspired reformers to improve
conditions of employment and the working environment.

33
 B. These efforts tried to humanize the new industrial economy by estab-
lishing maximum hours and minimum wage laws, and aiding organized
labor.
C. These efforts immediately confronted judicial opposition, both at the
state and the federal level. Courts finely tuned the concept of substan-
tive due process of law, which held that certain activities were beyond
the scope of the state to regulate, and the right to form a labor contract
was viewed as one of these.
D. This liberty was found in the due process clause of the Fourteenth
Amendment, and the Supreme Court in particular had applied it in a
host of ways, although it had left certain exceptions, such as occupa-
tions that were deemed to be extremely dangerous.
E. In the case of New York, the movement for shorter hours and better
working conditions for laborers began in the late 1860s and continued
through the 1880s when the movement for an eight-hour day reached
a crescendo.
F. In 1895 the New York legislature passed legislation that aimed to regu-
late the sanitary conditions in bakeries, which were generally small
operations, and to limit the hours that bakers could work.
G. One of the leading advocates for change was Henry Weismann, the
opportunistic leader of the New York Bakers’ Union, and it was through
his efforts that the Bakeshop law passed. This law provided that hours
in bakeries were limited to ten per day and 60 per week.
H. Joseph Lochner was a so-called “boss baker” in Utica, who owned
small shops that depended for their success on usually five or fewer
assistant bakers. Lochner, like other boss bakers, worked on thin mar-
gins, the health of which were determined by the hours that his assis-
tants worked.
I. New York authorities in 1902 twice fined Lochner $50 for allowing an
employee to work more than 60 hours in one week.
J. Lochner appealed his conviction to the New York Court of Appeals,
where he lost by a vote of 4 to 3. However, Henry Weismann, who had
now become a boss baker himself and had studied law, rushed to
Lochner’s rescue and helped him take the case to the Supreme Court.
The person chiefly responsible for passage of the legislation was now
aligned with Lochner to have it overturned on constitutional grounds.

III. The Social, Political, and Constitutional Issues in Controversy.

A. The late nineteenth century was a period of reform directed at adjusting
the social impact of industrialization and immigration.
B. One of the ways to do so was through state laws that re-defined the
relationship of capital to labor, such as the New York Bake Shop law.
LECTURE SIX

C. The states did so through the police power, the authority of the states
to provide legislatively for the health, safety, morals, and welfare of
the public.

34
 D. At the same time, corporations and individual owners, such as Joseph
Lochner, insisted that the marketplace should operate without any state
interference, and they turned for constitutional support to the doctrine of
substantive due process of law. This doctrine, which had found expres-
sion in Dred Scott (1857), had become more and more important.
E. The idea of a substantive reading of the due process clause of the
Fourteenth Amendment had been broached in the minority opinion of
Justice Stephen J. Field in the Slaughterhouse Cases (1873), but it had
increasingly become the majority opinion of the Court. Field wrote that
the due process clause of the Fourteenth Amendment included “the
right to pursue an ordinary trade or calling.”
F. It linked the idea of restraint on government with individual liberty, and
in the case of workers with a so-called liberty to contract. That is, work-
ers and their employers should be free to make whatever arrangements
they considered to be in their best interests and that the state should
not interfere.
G. State courts had used the concept to strike down a host of legislation,
but the Supreme Court, until Lochner, had applied the doctrine only
once, in Allgeyer v. Louisiana (1897).
H. The Court had recognized that there were some activities that the state
could control, such as hazardous occupations, including mining.
(Holden v. Hardy [1898]).

The Composition of the Supreme Court

at the Time of Lochner v. New York

The appointees of Presidents Benjamin Harrison and Grover Cleveland domi-

nated the Supreme Court.
Cleveland appointed three members, two of whom helped to make up the
Lochner majority–Chief Justice Melville W. Fuller and Rufus W. Peckham
from New York, the author of the majority opinion.
The third Cleveland member on the Court, Edward D. White, dissented.
Harrison contributed two to the majority–David J. Brewer, nephew of
Justice Stephen J. Field, and Henry Billings Brown, the author of Holden
v. Hardy (1898).
President William McKinley made one appointment, Joseph McKenna, who
joined the majority.
President Theodore Roosevelt added two of his own who dissented–Oliver
Wendell Holmes, Jr., and William R. Day.
President Rutherford B. Hayes appointed the senior member of the Court,
John Marshall Harlan, who also dissented.

35
 III. The Arguments Before the Court and Who Made Them.
A. Lochner’s position was argued by Henry Weismann, a native of
Germany who had successfully led California bakers before moving to
New York and becoming the leader of the Journeymen Bakers Union.
He was the principal author of the New York Bake Shop law and he
was now arguing against it.
B. Weismann was not a fully trained lawyer and he was never formally
admitted to the bar of the Supreme Court of the United States, although
neither stopped him from arguing the case because the justices grant-
ed him an exception.
C. He was joined by a New York City lawyer, Frank H. Field.
D. Weismann argued that:
1. The New York law denied persons in the baking trade equal protec-
tion of the laws since it was limited to a special group, bakers, but
not to homemakers, who also baked.
2. He accepted that the state had certain police powers, but that they
should not be exercised in this instance because by doing so the
state of New York had interfered with the “freedom to exercise a
trade or calling” and that any doubts about the use of this power
should always be resolved in favor of individual liberty.
3. Weismann also argued that baking was not a dangerous occupation,
certainly not equal to the threats faced by miners.
4. The law, then, was not a “labor law,” but rather a piece of social
engineering that should be struck down since it had no reasonable
connection to the use of the state’s police powers.
E. New York’s Attorney General, Julius M. Mayer, argued the case for
the law.
F. Mayer argued that:
1. Lochner at trial had not raised any constitutional issues and he had, in
any case, been found guilty, not once but twice of violating the law.
2. The act was a reasonable exercise by the state of its police powers,
which should be viewed as “necessarily elastic” in order to address
the new and changing conditions of industrial life.
3. On the question of where to draw the line on the use of the police
power, Mayer insisted that such a determination should be left to the
legislative branch and not to the courts.
4. The state had an interest in having a healthy work force, since these
persons might be needed to come to the aid of the state in a time
of crisis.

IV. The Decision of the Court.

LECTURE SIX

A. The justices decided the case by a vote of 5 to 4, with Justice Peckham

writing for the majority.
B. Following two days of argument, the Court in conference had given the

36
 task of writing the opinion to Justice Harlan, but he was unable to keep
a majority, for reasons that are not altogether clear. What does seem
clear is that either Justices Brown or McKenna switched sides.
C. Justice Peckham then emerged as the author of the majority opinion in
which he held that:
1. In order to pass constitutional muster when the police power is
invoked to break a contract, there had to be a legitimate, fair, and
reasonable use of the legislature’s power.
2. Peckham dismissed arguments about internal security and defense,
since he found that these could be used to justify almost any kind of
state interference with the individual.
3. The duty of the Court was to decide not only whether the law that
was passed fell within the powers of the legislature but the motiva-
tion behind its passage, and in this instance the only appropriate
motive behind the law could be its use for purposes of health.
4. In this instance, the law did not have a direct connection to the
health of either the workers or the public; indeed, the law in this
regard was “too shadowy and thin.”
5. Baking might be unhealthy in some ways, but it was not a dangerous
occupation per se, and that, in any case, the issue was not protecting
the bakers but rather the health of the public as a whole. “Wholesome
bread,” Peckham wrote in one of the most memorable phrases of
American constitutional history, “does not depend upon whether the
baker works but ten hours per day or only 60 hours a week.”
6. In sum, the New York law was an infringement on the individual lib-
erty of the bakers, and it was a piece of class legislation, not a
health measure.
7. As a result, the due process clause of the Fourteenth Amendment
provided full protection to the bakers in their claim to be able to exer-
cise “liberty to contract.”
D. Justice Harlan, joined by Justices White and Day, dissented. They
claimed that:
1. Employees did not stand on an equal footing with employers and that
meant that the state had a legitimate role in helping to restore the
balance between them.
2. Moreover, based on medical evidence, the legislature had a reason-
able basis upon which to conclude that its police powers should be
used to protect the bakers.
E. Justice Oliver Wendell Holmes, Jr., issued the most memorable dissent.
1. The statute did not infringe any fundamental liberties and both
Peckham and Harlan were wrong, since the real issue was the use
of judicial power to substitute the views of the justices for those of
the New York legislature.

37
 2. Holmes accused the majority of using a constitutional theory a major-
ity of the American people disagreed with and that, in any case,
should not be taken account of since the people of New York had
spoken through their legislature.
3. A constitution is not meant to embody a particular economic theory
and any such theory had to yield before the will of the people, who
might differ in their views on matters. But the justices were bound to
respect the will of the majority even if they did not share its views.
4. “The Fourteenth Amendment had not enacted,” Holmes wrote, “Mr.
Herbert Spencer’s Social Statics.”

IV. Impact of the Decision.

A. There were some rumors of a threatened national strike after the deci-
sion, but that never happened, although the high court came under
sharp attack from reform groups for what they believed was bending to
the will of corporations.
B. The ruling had no impact outside the bake shops, which caused some
commentators to label it an aberration.
C. The Great Depression, however, made clear that the economic
assumptions behind the Lochner decision, with its emphasis on the
idea that each individual should be left to make the best possible con-
tract for their work, was untenable.
D. However, the concept of substantive due process, and the broad pow-
ers that it granted to the judiciary, remained very much alive and were
ultimately resurrected in developing a host of fundamental rights, such
as privacy, birth control, and abortion, that are nowhere mentioned in
the Constitution.
E. Three years later the justices in Muller v. Oregon upheld a state law
regulating the hours women could work. The Court held that this “weak-
er” sex required protection and that its “liberty to contract” was less
than that of men.

Summary
The case of Lochner v. New York marked the apogee of substantive due
process of law and one of the most profound uses of judicial review of state
legislation by the high court. The case was so controversial because the jus-
tices were taking exception to a well-intentioned state effort to address the
social and economic consequences of industrialization and their bold, almost
breathtaking, use of judicial review to do so. The majority of the Court made
clear that they were prepared not just to weigh the constitutionality of a partic-
ular law but also to have their judgements informed by their own beliefs. That
they used the concept of liberty to do so did not obscure the simple fact that
the high court seemed to place the protection of property and corporate inter-
LECTURE SIX

ests above the well-being of individual workers.

38


FOR GREATER UNDERSTANDING

Questions

1. Why do you think that three years after this decision the Court upheld a
state law limiting the number of hours a woman could work? (Oregon)
2. Why is Holmes’ dissent considered one of the strongest in the history of
the Court?

Suggested Reading

Kens, Paul. Lochner v. New York: Economic Regulation on Trial. Lawrence,

KS: University Press of Kansas, 1998.
Gillman, Howard. The Constitution Besieged: The Rise and Demise of
Lochner Era Police Powers Jurisprudence. Durham, NC: Duke University
Press, 1993.

Articles of Interest

Kens, Paul. Judicial Power and Reform Politics: The Anatomy of Lochner v.
New York. Lawrence, KS: University Press of Kansas, 1990.
Phillips, Michael J. The Lochner Court, Myth and Reality: Substantive Due
Process from the 1890s to the 1930s. Westport, CT: Praeger, 2001.
Siegan, Bernard H. “Rehabilitating Lochner,” San Diego Law Review 22
(1985): 453.
Stephenson, D. Grier, Jr. “The Supreme Court and Constitutional Change:
Lochner v. New York Revisited.” Villanova Law Review 21 (1975): 217–243.
Sunstein, Cass R. “Lochner’s Legacy,” Columbia Law Review 87 (1997): 873.
Urofsky, Melvin I. “State Courts and Protective Legislation During the
Progressive Era: A Reevaluation,” Journal of American History 72
(June 1985): 63–68, 71–74, 77–79, 88–91.

39
 Lecture 7:
Clear and Present Danger,
the First Amendment, and Total War:
Abrams v. United States (1919)

The Suggested Reading for this lecture is Richard Polenberg’s Fighting

Faiths: The Abrams Case, the Supreme Court, and Free Speech.

Importance of Abrams v. United States

This case formed the clear and present danger test, which modified First
Amendment rights.
The Plaintiff
Jacob Abrams, a Russian Jewish immigrant and anarchist, along with
others, was arrested for writing and distributing two pamphlets that con-
demned President Woodrow Wilson for sending troops to fight in Soviet
Russia. The second pamphlet also called for a general strike. Abrams and his
colleagues were tried and found guilty under the Sedition Act.
The Defendant
United States. In this case, Assistant Attorney General Robert T. Stewart and
his assistant, W.C. Herron, defended the actions of the government as necesary
to protect national security.

Introduction
For over 125 years following the adoption of the Bill of Rights in 1791, the
Supreme Court never considered a free speech issue based on federal law.
However, with the advent of World War I and the passage of the Espionage Act
of 1917 and the Sedition Act of 1918, the question of First Amendment guaran-
tees took on new importance. In response to the efforts of opponents of
American involvement in World War I, the federal government brought criminal
actions against a host of radical groups. The result was two famous Supreme
Court cases, Schenck v. United States, 249 U.S. 47 (1919) and Abrams v.
United States, 250 U.S. 616 (1919). While both cases were of critical historical
and constitutional importance, the latter shaped, through its interpretation of the
clear and present danger test, the limits of freedom of speech for half a century.
Abrams was argued October 21, 1919 and decided 10 November 1919 by a
vote of 7 to 2. Justice John H. Clarke wrote the opinion for the Court and Justice
Oliver Wendell Holmes, Jr., joined by Justice Louis D. Brandeis, dissented.

III. The Background of Abrams v. United States (1919).

LECTURE SEVEN

A. In June 1917, two months after the United States entered World War I,
Congress passed the Espionage Act, which established three basic
wartime offenses.
1. Conveying false information intended to interfere with
military operations.

40
 2. Causing insubordination in the military.
3. Obstructing recruiting.
B. In response to demands for tighter control over speech, Congress in May
1918 passed the Sedition Act, which provided that no one was to say or
write anything that might bring contempt or disrepute upon the govern-
ment or promote resistance to its policies.
C. On August 23, 1918, Jacob Abrams, a Russian Jewish immigrant and
an anarchist, along with several others, was arrested for writing,
printing, and distributing two pamphlets, one in Yiddish (entitled
“Workers Wake Up”) and one in English (entitled “The Hypocrisy of
the United States and her Allies”), that condemned President
Woodrow Wilson for sending troops to fight in Soviet Russia. The
defendants were charged with inciting resistance to the war effort
and for urging curtailment of production of essential war material.
D. Abrams and his colleagues were tried and found guilty under the
Sedition Act and sentenced to 15 to 20 years.
E. In March 1919, while Abrams and the others were out on bail, the
Supreme Court upheld the convictions of antiwar Socialists under the
Espionage Act (Schenck v. United States) and the Sedition Act (Debs
v. United States).
F. Justice Oliver Wendell Holmes, Jr., wrote the opinions in both of these
cases and in the process of doing so formulated the clear and present
danger test. It provided that “[t]he question in every case is whether the

The Composition of the Supreme Court

at the Time of Abrams v. United States

Chief Justice Edward D. White was appointed by President Grover Cleveland.

Joseph McKenna, appointed by William McKinley, was the son of Irish immi-
grants who settled in Philadelphia but later moved to California. A loyal
Republican in politics, it was this quality, rather than legal talent, that earned
him a place on the high court. Oliver Wendell Holmes, Jr. and William Rufus
Day were appointed by Theodore Roosevelt. Willis Van Devanter and Mahlon
Pitney were appointed by William Howard Taft.
James Clark McReynolds was a thorn to Progressive and New Deal legisla-
tion, earning a designation as one of the “Four Horsemen.”
Louis Dembitz Brandeis, appointed by Woodrow Wilson, was the son of
Jewish immigrants. Brandeis proved to be an extraordinary justice.
John H. Clarke, appointed by Woodrow Wilson, supported suffrage for
women, a mandatory civil service, and public disclosure of campaign expen-
ditures. Clarke’s support for progressive causes never reached fruition on the
Court because Clarke resigned after less than six years in order to promote
American participation in the League of Nations.

41
 words used are used in such circumstances and are of such a nature
as to create a clear and present danger that will bring about the sub-
stantive evils that Congress has a right to prevent.”

III. The Social, Political, and Constitutional Issues in Controversy.

A. The enormous immigration of persons from Eastern and Central
Europe and the often radical views they held were a source of concern.
B. With the United States involved in total war for the first time, actions
were being taken around the country that raised grave concerns about
civil liberties.
C. The constitutional issues raised by the case centered on the question
of whether the amendments to the Sedition Act or the application of
those amendments in this case violated the free speech clause of the
First Amendment.
D. The Abrams trial had begun in the midst of an influenza epidemic which
many New Yorkers blamed on German agents.
III. Arguments Before the Court and Who Made Them.
A. For Abrams:
1. Henry Weinberger, a New York lawyer who was experienced in han-
dling the defense of anarchists.
2. The evidence presented, Weinberger argued, did not support a
guilty verdict, since Abrams and his colleagues had merely been
engaged in criticism and discussion of a public policy.
3. These discussions enjoyed the protection of the First Amendment.
4. The United States, moreover, was not at war with the Soviet Union
and, as a result, Abrams could not be considered to have interfered
with a war effort.
5. Finally, he insisted that both the Espionage Act, its amendments, and
the Sedition Act were unconstitutional because they violated the nat-
ural right of liberty of discussion.
B. For the United States:
1. Assistant Attorney General Robert T. Stewart and his assistant, W.C.
Herron, defended the actions of the government.
2. Abrams and his colleagues had attempted to block the production of
munitions and had tried to overthrow the government by force.
3. The First Amendment had been created merely to protect the press
from prior restraint and evidence that showed harm after publication
was enough to prompt government action and punishment.
4. There was a national emergency and the government was fully with-
LECTURE SEVEN

in its powers to prevent its wartime efforts from being undermined.

IV. The Decision of the Court.
A. John H. Clarke wrote the majority decision and closely followed the
reasoning of Oliver Wendell Holmes, Jr., in Schenck v. United States,
which had been decided in the spring of 1919.

42
 1. The leaflets had created a clear and present danger because they
had been distributed at “the supreme crisis of the war” and amount-
ed to “an attempt to defeat the war plans of the Government.”
2. Even if the primary purpose of Abrams and his colleagues was to
aid the Russian Revolution, the general strike that they advocated
would have necessarily hampered American prosecution of the war
against Germany.
3. Clarke proceeded on narrow and technical grounds to uphold the
conviction of the defendants, but he also quoted selectively and out
of context from their pamphlets.
4. Clarke also turned his attention to the question of intent, and it was on
this matter that his opinion had the greatest impact. Clarke said that
“men must be held to have intended, and to be accountable for effects
which their acts were likely to produce.”
5. Thus, Clarke replaced Holmes’ clear and present danger test with a
new one, the bad tendency test.
6. This new test did not require that any harm be demonstrated as a
result of some action taken, but only that there was a tendency
toward such an outcome. The effort to aid the Russian Revolution
had produced a bad tendency that would interfere with the produc-
tion of munitions and the entire war effort. It was enough, in short,
merely to provoke resistance to the United States, even if such resis-
tance never materialized.
B. Oliver Wendell Holmes, Jr., and Louis D. Brandeis both dissented.
1. Holmes broke from his earlier support of the government, to argue in
this dissent that the government had failed to demonstrate any intent
on the part of the anarchists.
2. In his words, “a deed is not done with intent to produce a conse-
quence unless that consequence is the aim of the deed.”
3. He recognized that there were grave dangers to the government during
the war, but in this instance no such danger actually existed.
4. According to Holmes, “the defendants had as much right to publish
[the leaflets] as the Government has to publish the Constitution of
the United States.”
5. Holmes concluded by insisting that the touchstone of the First
Amendment is the concept that ultimate good is best reached by a
free and robust marketplace of ideas.
6. According to Holmes, for speech to be restricted, dangers must present
an immediate evil and connect to a specific action. Unless those condi-
tions exist, speech should be allowed.
7. The First Amendment protected the expression of all opinions
“unless they so imminently threaten immediate interference with the
lawful and pressing purposes of the law that an immediate check is
required to save the country.”

43
 IV. The Impact of the Decision.
A. Abrams and his colleagues were imprisoned until 1921, when they were
deported to the Soviet Union. Eventually, their homeland rejected them.
B. The Supreme Court wrestled with the concept of clear and present
danger for the next 50 years, until, in Brandenburg v. Ohio (1969), it
substituted a direct incitement test.
C. What endures most significantly from Holmes’ dissent is the connection
between freedom of speech, the quest for truth, and the value of exper-
imentation in human affairs.
Summary
Abrams, then, along with Schenck, helped to define a new and, until World
War I, largely neglected area of constitutional development, which eventually
led to a stronger position for First Amendment freedoms. The clear and pre-
sent danger position articulated by Holmes in dissent became the position of
the majority of the Court in the 1930s. The high court’s decision in Abrams
marked a turning point in the development of First Amendment freedoms,
even though the decision itself was not entirely congenial to robust political
discussion. The development of clear and present danger, moreover, con-
tinued the trend begun after the Civil War of vesting increasing power in
judges, in this case in their ability to predict what will happen as a result
of certain statements.
LECTURE SEVEN

44


FOR GREATER UNDERSTANDING

Questions

1. How does the First Amendment pertain to the Internet? Is there new legis-
lation covering this subject?
2. This decision remained the clear and present danger standard for fifty
years until Brandenburg v. Ohio. How did that decision modify Abrams v.
United States?
3. Would this case have been tried if the “Red Scare” wasn’t in full force at
this time?

Suggested Reading

Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme

Court, and Free Speech. New York: Penguin, 1988.

Other Books of Interest

Berns, Walter. The First Amendment and the Future of American Democracy.
New York: Basic Books, 1976.
Capaldi, Nicholas. Clear and Present Danger: The Free Speech Controversy.
New York: Pegasus, 1969.
Caughey, John Walton. In Clear and Present Danger: The Crucial State of
Our Freedoms. Chicago: University of Chicago Press, 1958.
Eastland, Terry. Freedom of Expression in the Supreme Court: The Defining
Cases. Lanham, MD: Rowman & Littlefield, 2000.
Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court,
and Free Speech. New York: Penguin, 1987.
Sunstein, Cass R. Democracy and the Problem of Free Speech. New York:
The Free Press, 1993.
Todd, A.L. Justice on Trial. New York: McGraw Hill, 1964.
Worton, Stanley R. Freedom of Speech and Press. Rochelle Park, NJ:
Hayden Book Co., 1975.

45
 Lecture 8:
A Switch in Time?
West Coast Hotel v. Parrish (1937)

The Suggested Reading for this lecture is William Edward

Leuchtenburg’s The Supreme Court Reborn: The Constitutional
Revolution in the Age of Roosevelt.

Importance of West Coast Hotel v. Parrish

This case decided not only the validity of a Washington state minimum
wage law but indirectly the viability of President Franklin D. Roosevelt's pro-
posal to restructure the Supreme Court in a way that would make it sup-
portive of New Deal programs designed to address the hardships created
by the Great Depression. The decision also marked an end of an era for
substantive economic due process of law.
The Defendant
Elsie Parrish was a chambermaid at the Cascadian Hotel in Wenatchee,
Washington, where she was paid $12 for a 48-hour week. Under the state mini-
mum wage law, she should have received $14.50. She sued the hotel in state
court and won her case.
The Plaintiff
West Coast Hotel Company appealed the decision of the state court for
Elsie Parrish. It argued that the minimum wage law violated the concept of
substantive due process of law in the Fourteenth Amendment.

Introduction
With the collapse of the American economy during the Great Depression, a
number of assumptions about the relationship of the government to the people
came under attack. One of the most important of these was the concept of liber-
ty to contract and the theory of substantive economic due process that support-
ed it. Both state and federal governments responded to the economic collapse
of the Depression by passing a host of measures designed to enhance and pro-
tect the status of working people. The Supreme Court, however, had established
a mixed record in response to such measures, and its perceived resistance to
many of President Franklin D. Roosevelt’s recovery measures soon put the jus-
tices and the president at odds with one another. Roosevelt became so frustrat-
ed that he proposed a plan to expand significantly the number of justices on the
high court, a step that would allow him to place on it members supportive of his
measures. It was in the context of this “Court packing” effort that the justices
heard the case of West Coast Hotel v. Parrish, 300 U.S. 379 (1937) and ren-
LECTURE EIGHT

dered a decision that marked the end of an era for substantive economic due
process of law and supposedly constituted “A Switch in Time That Saved Nine.”
The case was argued 16-17 December 1936 and decided 29 March 1937 by a
vote of 5 to 4. Chief Justice Charles Evans Hughes wrote for the Court and
Justice George Sutherland wrote for the dissenters.

46
 The Composition of the Supreme Court
at the Time of West Coast Hotel v. Parrish

Charles Evans Hughes was the Chief Justice.

Louis Dembitz Brandeis, appointed by Woodrow Wilson, was the son of
Jewish immigrants.
Benjamin Nathan Cardozo was appointed by Herbert Hoover to succeed
Oliver Wendell Holmes, Jr. Cardozo’s appointment was something of a fluke
in the view of some scholars. At the time, there was another Jew on the
Court (Brandeis) and another New Yorker (Stone); and, Hoover was a
Republican. But Cardozo had enthusiastic support from all quarters (the orga-
nized bar, the academic world, the media) and Hoover may have been moti-
vated to make a nonpolitical appointment in the face of a tough reelection
campaign in November.
Willis Van Devanter, appointed by William Howard Taft, was one of the
“Four Horsemen.”
James Clark McReynolds, appointed by Woodrow Wilson, was a thorn to
Progressive and New Deal legislation, earning a designation as one of the
“Four Horsemen.” His manner affected his relationships on the Court. For
example, he refused to converse with John Clarke (also appointed by
Wilson) because Clarke was too liberal. And McReynolds made no secret of
his anti-Semitism by refusing to speak to fellow justices Louis Brandeis and
Benjamin Cardozo.
George Sutherland, appointed by Warren G. Harding, was born in England
but raised in Utah, where he practiced law and achieved a measure of
Republican political prominence. Sutherland articulated a fundamentally con-
servative position on the role of government, and he offered his vote and
voice in support of substantive due process and other judicial barriers to state
government regulation and control. He was one of the “Four Horsemen.”
Pierce Butler, appointed by Warren G. Harding, had the good fortune to be
born on St. Patrick’s Day. Butler was a Catholic at a time when there were no
other Catholic justices. Butler was one of the conservative “Four Horsemen.”
Harlan Fiske Stone, appointed by Calvin Coolidge, was later elevated to
the position of Chief Justice by Franklin D. Roosevelt in 1941. He articulated
a central tenet of FDR’s judicial philosophy: the concept of judicial self-
restraint. In his early experience on the bench, Stone was often at odds with
many of his colleagues, who sought to impose their policy preferences in the
name of the Constitution. Stone’s ideas about the role of the judiciary were
forcefully expressed in several important dissenting opinions during the hey-
day of the New Deal, when the Court majority continually struck down
national legislation.
Owen J. Roberts, appointed by Herbert Hoover, graduated Phi Beta Kappa
from the University of Pennsylvania in 1895. Roberts was a replacement
nominee to the Supreme Court. His name was sent to the Senate after the
defeat of John J. Parker’s nomination in May 1930.

47
 III. Background of the Case of West Coast Hotel v. Parrish (1937).
A. Elsie Parrish was a chambermaid at the Cascadian Hotel in
Wenatchee, Washington, where she was paid $12 for a 48-hour week.
B. Under the state minimum wage law, she should have received $14.50.
C. She sued the hotel in state court and won, but the hotel then appealed.

III. The Social, Political, and Constitutional Issues in Controversy.

A. By 1937, the Court had more than 30 years of experience with laws
protecting women in industry, and its record had been mixed.
1. In 1908 the Court upheld a ten-hour law for women workers in Muller
v. Oregon, but the justices left stand the precedent of liberty to con-
tract in Lochner v. New York (1903).
2. In 1917 the Court approved a ten-hour law for both men and women in
Bunting v. Oregon, but it never mentioned Lochner.
3. In 1923, however, the Court resurrected Lochner by striking down
a minimum wage law for women in the District of Columbia in
Adkins v. Children’s Hospital, and the majority in this 5 to 3
(Brandeis recused himself because his daughter worked for the
District’s minimum wage board.) case made clear that liberty to
contract was a broad and expansive doctrine designed to control
legislative abuses of the police powers.
4. In 1936 the Court relied on the Adkins precedent to strike down a New
York state minimum wage law in Morehead v. New York ex rel. Tipaldo,
doing so, in the words of Justice Pierce Butler, with the understanding
that: “The State is without power by any form of legislation to prohibit,
change, or nullify contracts between employers and adult women work-
ers as to the amount of wages to be paid.”
5. In retrospect, the decision in Morehead, with its strident and uncom-
promising tone in the midst of the Depression, was one of the Court’s
biggest mistakes.
6. The building of a majority, however, depended on the vote of Justice
Owen J. Roberts, who had previously supported the liberals in sustain-
ing some New Deal legislation, but in Morehead he sided with the four
conservative justices (Pierce Butler, Willis Van Devanter, James
McReynolds, and George Sutherland).
B. In many respects the Court was tremendously polarized. While the jus-
tices had joined together unanimously to strike down some New Deal
measures, the Court was increasingly marked by decisions that were 5 to
4. The conservatives became so visibly opposed to the New Deal that
they became known as the “Four Horsemen of the Apocalypse.”
LECTURE EIGHT

1. The underlying constitutional issues involved the power of legislative

bodies to pass measures that would cushion the blow delivered by
the Depression and whether the doctrines of substantive economic
due process and liberty to contract could thwart them in doing so.

48
 2. Allied with these matters was the question of whether the Court
should defer to the legislative branch as a matter of course and be
less activist in matters involving the economy and state regulation
of it.
III. Arguments Before the Court and Who Made Them.
A. For the West Coast Hotel:
1. E.L. Skeel, with whom Mr. John W. Roberts argued the case.
2. The Washington statute was passed in 1913, long before the
decision in Adkins v. Children’s Hospital. It was in no sense an
emergency measure.
3. It sets up one standard, which is, the wage must be adequate to
the maintenance of an adult women worker, but it does not require
that the wage have any reasonable relationship to the value of the
worker’s services.
4. Thus, the law is a substantive violation of the due process clause of
the Fourteenth Amendment and should be stricken down.
B. For Elsie Parrish
1. C.B. Conner and Sam M. Driver filed a brief on behalf of Parrish.
2. The issue was whether this legislative act was a valid and reason-
able exercise of the police power of the State. The Constitution does
not prohibit states from regulating matters for the public welfare, but
simply requires that regulations be reasonable and adapted to that
end. Nebbia v. New York, 291 U.S. 592.
3. It is within the province of the legislature to determine what matters
and conditions pertaining to the public welfare require attention and
the remedy. In passing the minimum wage law, the legislature had
under consideration the needs of the people of the State—the general
welfare of the people, and in construing that law the Supreme Court
of Washington State approved the findings of the legislature and
determined that the act was in the interest of the general welfare of
the community.
4. This Court should not inquire into the wisdom of the Act, nor the eco-
nomic conditions of the State, which induced its passage, and unless
the Act is entirely beyond the legislative power, it is not subject to
constitutional objection.
5. This law was passed by virtue of the reserved police power of the
State of Washington, and, having received the approval of the high-
est court of the state, is entitled to approval by this Court. In no
case has a decision of the highest court of a state upon a local mini-
mum wage regulation been reversed by the Supreme Court of the
United States.
6. The presumption of constitutionality must prevail in the absence of any
factual foundation in the record for declaring the act unconstitutional.

49
 7. The U.S. Attorney General filed an amicus brief in support of Parrish.

IV. The Decision of the Court.

A. The Court was bitterly divided, 5 to 4, with Chief Justice Hughes writing
for the majority. The key vote was that of Justice Owen J. Roberts, who
shifted to the liberal side.
1. The Court upheld the Washington state law and overturned Adkins v.
Children’s Hospital.
2. The Court found that deprivation of liberty to contract is forbidden by
the Constitution if without due process of law, but that the legislature
has broad scope to restrain or regulate this liberty if reasonable in
relation to its subject and if adopted for the protection of the commu-
nity against evils menacing the health, safety, morals and welfare of
the people.
3. In dealing with the relation of employer and employed, the legislature
has necessarily a wide field of discretion in order that there may be
suitable protection of health and safety, and that peace and good
order may be promoted through regulations designed to insure
wholesome conditions of work and freedom from oppression.
4. The State has a special interest in protecting women against employ-
ment contracts, which through poor working conditions, long hours or
scant wages may leave them inadequately supported and undermine
their health; because the health of women is peculiarly related to the
vigor of the race, women are especially liable to be overreached and
exploited by unscrupulous employers. Exploited and sick women would
become a burden on the state.
5. Judicial notice was taken of the unparalleled demands for relief that
arose during the Depression.
6. A state law for the setting of minimum wages for women was not an
arbitrary discrimination, because it did not extend to men.
B. Justice Sutherland wrote for the dissenters, the conservative “Four
Horsemen.”
1. Sutherland argued that the state had acted unreasonably and had
violated the holding in Adkins v. Children’s Hospital.
2. Moreover, women and men were equal, and legislation that treated
them as different with respect to the right to contract was a form of
arbitrary discrimination prohibited by the due process clause of the
Fourteenth Amendment.
IV. Impact of the Decision.
A. The decision helped to close the door on FDR’s “Court packing plan,”
LECTURE EIGHT

because it now seemed clear that the majority of the Court was moving
toward supporting the New Deal economic measures.
B. The decision also provided legal and political support for another piece
of New Deal legislation, the Fair Labor Standards Act of 1938, which
the Court upheld in United States v. Darby Lumber Company (1941).

50
 C. The decision also marked the beginning of the end of the doctrine of
substantive economic due process of law, as the Court signaled that it
would give broad scope to Congress and the states to pass legislation
dealing with the economy.
D. Between 1937 and 1980 the case was cited some 41 times by the
Supreme Court, a fair indication of its importance in establishing the new
administrative and regulatory state that the New Deal ushered in.
E. Following the decision, the “Four Horsemen” gradually left the Court,
allowing Roosevelt to appoint justices more congenial to the New Deal.

Summary
West Coast Hotel has been the subject of intense study, both because of the
important role that Justice Roberts played in supposedly switching his vote to
preserve the high court from FDR’s plans and because it marked the end of
one epoch in the Court’s history and the beginning of another. On reflection,
neither of these seem quite true since Roberts cast his vote in conference at
least two months before FDR announced his plans and, to some extent, his
position, while not entirely predictable, was not entirely capricious either. At
the same time, the Court’s decision, by indicating that it would no longer use
liberty to contract and substantive due process as a basis to interfere with
legislative action, opened a new chapter for the justices, one in which they
now turned their attention to issues of civil liberties and civil rights, the main
areas of concern for the post-World War II Court.

51


FOR GREATER UNDERSTANDING

Questions

1. Think about the implications of the phrase “the switch in time that saved
nine.” How does Roosevelt’s “Court packing plan” conflict with the
Supreme Court’s constitutional charter?
2. How would this decision based on women’s inequality have been argued
differently today? What would the main points be?

Suggested Reading

Leuchtenburg, William Edward. The Supreme Court Reborn: The

Constitutional Revolution in the Age of Roosevelt. New York: Oxford
University Press, USA, 1996.

Other Books of Interest

Baker, Leonard. Back to Back: The Duel Between FDR and the Supreme
Court. New York: Macmillan, 1967.
Brandeis, Louis Dembitz. Women in Industry. New York: Arno, 1969.
Cope, Alfred H. Franklin D. Roosevelt and the Supreme Court. Lexington,
KY: Heath, 1969.
Gillman, Howard. The Constitution Besieged: The Rise and Demise of
Lochner Era Police Powers Jurisprudence. Durham, NC: Duke University
Press, 1993.
Leonard, Charles A. A Search for a Judicial Philosophy: Mr. Justice Roberts
and the Constitutional Revolution of 1937. Port Washington, NY: Kennikat
Press, 1971.
McKenna, Marian C. Franklin Roosevelt and the Great Constitutional War:
The CourtPacking Crisis of 1937. New York: Fordham University
Press, 2002.
Pritchett, C. Herman. The Roosevelt Court: A Study in Judicial Politics and
Pusey, Merlo John. The Supreme Court Crisis. New York:
Macmillan, 1937.
LECTURE EIGHT

52
 Lecture 9:
Japanese Internment and Total War:
Korematsu v. United States (1944)

The Suggested Reading for this lecture is Peter Irons’s Justice at War.

Importance of Korematsu v. United States

This case stands as a harsh reminder of how easily justice can be
betrayed, even in the Supreme Court of the United States. Korematsu v.
United States, to use the words in the dissent of Justice Murphy, condoned
the “legalization of racism.”

The Plaintiff
Fred Korematsu was an American-born citizen of Japanese ancestry who
was twice rejected for military duty but won a job in the defense industry.
When Presidential Executive Order 9066 gave the military the right to begin
internment of Japanese-Americans on the West Coast, Korematsu ignored
the order, moved and changed his name, until he turned himself in and tested
his rights in the court system. He was found guilty and sentenced to five
years in prison (from which he was paroled and sent to an internment camp).
He appealed through a Federal District Court and then to the Supreme Court.
The American Civil Liberties Union supported Korematsu.
The Defendant
United States was defended by Solicitor General Edward Fahy and Assistant
Attorney General Herbert Wechsler.

Introduction
In 1941, more than 112,000 Japanese-Americans, about three-quarters of
whom were citizens of the United States, lived on the West Coast. Military
officials, especially General John L. DeWitt, head of the Western Defense
Command, argued that these persons constituted a threat in light of the
Japanese attack on Pearl Harbor. Those concerns were echoed by prominent
figures, including newspaper columnist Westbrook Pegler, who declared “to
hell with habeas corpus.” Acting on the recommendation of Assistant
Attorney General Tom C. Clark, a future justice of the Supreme Court,
President Franklin D. Roosevelt on February 19, 1942 issued Executive
Order No. 9066, which empowered the Secretary of War to intern Japanese-
Americans in camps scattered through the interior of the American West.
These actions ultimately produced four Supreme Court cases: Hirabayashi v.
United States (1943), Yasui v. United States (1943), Ex Parte Endo (1944),
and Korematsu v. United States (1944). The last of these, which is reported
at 323 U.S. 214, prompted the greatest division among the justices and
sheds, perhaps, the greatest light on how the Court, faced with the stark reali-
ty of war, attempted to balance issues of security and freedom. The case was

53
 argued October 11–12, 1944 and decided December 18, 1944 by a vote of 6
to 3. Justice Hugo Black wrote the opinion for the Court, with Justice Felix
Frankfurter concurring, and Justices Owen J. Roberts, Frank Murphy, and
Robert H. Jackson dissenting.
III. The Background of the Case.
A. Japanese immigration to the United States was legalized by the Japan-
ese government in 1885, and by 1890 they began to arrive in significant
numbers. The American laborers saw them as rivals for jobs, thus build-
ing trades and other occupations soon became closed to the Japanese.
B. The anti-Japanese movement escalated in 1905 when the Asiatic
Exclusion League was set up. This movement helped pass laws in
California that prohibited land ownership by Japanese aliens but did
permit leasing of land. For the growing number of Issei (Japanese
immigrants) who had American-born children, the title was simply
transferred to their citizen children.
C. Throughout the 1930s the Nisei (first generation native-born
Japanese) dreaded the possibility of a war between the United States
and Japan as relations between the two countries deteriorated steadi-
ly. Japan, at war with China since 1937, continued to gain territory
there. In 1941, the Japanese moved into Indochina (now Vietnam)
and threatened the Dutch East Indies. The United States stopped
almost all trade with Japan.
D. The Japanese bombed Pearl Harbor, Hawaii, on December 7, 1941,
and after Japanese conquests in the Pacific, near hysteria gripped the
West Coast of the United States. Many people feared that Japan would
attack there. At the time of the bombing there were approximately
112,000 persons of Japanese descent living on the West Coast, about
70,000 of whom were American citizens.
E. In March 1942, Congress passed legislation empowering President
Franklin D. Roosevelt by executive order and cabinet or military orders
under his direction to restrict movement or residence in any designated
military area or war zone where he felt that such restriction was neces-
sary to national security. Because of growing fear that an invasion of
the West Coast was imminent and lurking suspicions about the loyalty
of Japanese-Americans living along the coast, President Roosevelt
issued Executive Order 9066. This order declared that “the successful
prosecution of the war requires every possible protection against espi-
onage and against sabotage to national defense material, national
defense premises, and national defense utilities.” The order came to be
applied increasingly to people of Japanese ancestry, citizen and alien
alike. The restrictions ranged from the imposition of curfews to forced
removal to “relocation centers.”
LECTURE NINE

F. Fred Korematsu was an American-born citizen of Japanese ancestry,

who grew up in the San Francisco Bay area, and had no criminal record.
G. He was twice rejected for military duty because of a physical disability,
but had a job in the defense industry and had a non-Japanese girlfriend.

54
 H. Presidential Executive Order 9066 and congressional statutes gave the
military authority to exclude citizens of Japanese ancestry from areas
deemed critical to national defense and potentially vulnerable to espi-
onage.
I. In May 1942, when the internment process began, Korematsu moved to
a nearby town, San Leandro, California, changed his name, had facial
surgery, and claimed he was Mexican-American.
J. He ignored military Order No. 34 which prohibited Japanese-Ameri-
cans from either remaining on the California coast or moving from
where they lived.
K. He was arrested by authorities on June 12, 1942. Korematsu was tried
in a federal district court. He challenged the order as it applied to him, a
loyal citizen of the United States, but he was found guilty of knowingly
violating the Civilian Exclusion Order.
L. Korematsu appealed the district court’s decision to the U.S. Circuit
Court, but his conviction was sustained. While being detained at an
internment camp in Topaz, Utah, he appealed to the United States
Supreme Court.

The Composition of the Supreme Court

at the Time of Korematsu v. United States

Harlan Fiske Stone was appointed Chief Justice by Franklin Roosevelt in 1941.
Owen J. Roberts, appointed by Hoover, was the pivotal vote in moving the
Supreme Court away from economic substantive due process.
Hugo L. Black was a controversial Roosevelt appointee because he had
once been a member of the Ku Klux Klan.
Stanley Reed, appointed by F.D.R, was a former solicitor general.
Felix Frankfurter, appointed by F.D.R., had a brisk and energetic style to all
that he did. To this day, his opinions stand out in relation to his colleagues’
colorless prose.
William O. Douglas, appointed by F.D.R., supported unpopular causes and
maintained an unconventional lifestyle (he was married four times).
Frank Murphy, appointed by F.D.R., while attorney general, established the
first civil rights unit in the Justice Department.
Robert H. Jackson, appointed by F.D.R., served as chief U.S. prosecutor at
the Nuremberg war crimes trials at the conclusion of World War II. He
returned to a divided Court.
Wiley Rutledge was Franklin Roosevelt’s eighth and last appointment to the
Supreme Court.

55
 III. The Social, Political, and Constitutional Issues in Controversy.
A. Faced with total war with Japan and Germany, issues of civil
liberties were critical, especially for those Americans who were
of Japanese descent.
B. Did the President and Congress go beyond their war powers by imple-
menting race-based exclusion and restricting the rights of Americans of
Japanese descent?
C. Were Fred Korematsu’s Fourteenth Amendment rights to equal protec-
tion of the law violated by the civilian exclusion order?
III. The Arguments Before the Court and Who Made Them.
A. For the United States:
1. Solicitor General Edward Fahy and Assistant Attorney General
Herbert Wechsler.
2. The nation was engaged in total war and drastic measures had to be
taken to protect the national security, and to support this position
Fahy relied on the Court’s ruling in Hirabayashi (1943).
3. The regulations were not racially discriminatory per se and, in any
case, the government had broad authority to protect itself.
4. The U.S. government was also aware, as the case was being
prepared, that federal investigators had found no evidence of any
Japanese-American engaging in conduct that would compromise
the nation’s security, a fact that was never revealed to the courts
at any level.
5. The states of California and Oregon also submitted amicus briefs
urging the Court to sustain the conviction.
B. For Korematsu:
1. Wayne M. Collins and Charles A. Horsky argued the cause for
Korematsu. Collins had already lost the case in the appeals court.
2. The American Civil Liberties Union also became involved, as it had
in the other internment cases, because it hoped in Korematsu to be
able to raise the issue of the illegality of the detention order, a sub-
ject that the Court had earlier skirted.
3. They argued Korematsu was protected under the equal protection
clause of the Fourteenth Amendment, since the evacuation order
was clearly racially biased.
4. There was no evidence that Korematsu posed a threat; indeed, it
was admitted that he was a loyal American.
5. The detention order itself was unconstitutional.
IV. The Decision of the Court.
LECTURE NINE

A. Justice Hugo Black wrote for the majority.

1. Black found that “all legal restrictions which curtail the civil rights of a
single racial group are immediately suspect” and should be given
“the most rigid scrutiny.”

56
 2. However, this is the only case the Supreme Court has applied the
“rigid scrutiny” test to a racial restriction and upheld a restrictive law.
3. Black held that the decision to exclude an entire group of people
from the West Coast was necessary since there was no time to sort
through who was loyal and disloyal.
4. Black refused to consider the question of the constitutionality of the
military forcing people into relocation camps, since Korematsu was
charged with remaining in a restricted area and failing to report to his
assembly point for transport to the internment facility.
5. Black rejected the argument that segregating the Japanese-Americans
for internment was a racist act; instead, it was a method by which the
military had decided how best to protect the national security.
B. Justice Frank Murphy dissented.
1. The decision to intern Korematsu and other Japanese-Americans
was based on questionable racial and sociological grounds, areas
where the military would not be expected to have any expertise.
2. There was no evidence that Japanese-Americans had engaged
in acts of treason and accusations that they had were based on
half-truths fostered by people with economic and racial prejudice
against them.
3. Murphy also noted that the evacuation order took four months to
issue and the last evacuee did not leave until almost eleven months
had elapsed, suggesting that there was hardly an emergency.
C. Justice Robert H. Jackson dissented.
1. He conceded that the military had the authority and the force to
arrest citizens and that the courts should not interfere with the Army.
2. Jackson believed that Black’s opinion had in fact established
that there was constitutional support to do so based on racial dis-
crimination, but that such discrimination was unlawful under the
Fourteenth Amendment.
3. The Court, he concluded, had fashioned a precedent that “lies about
like a loaded weapon ready for the hand of any authority that can
bring forward a plausible claim to an urgent need.” On these grounds,
Jackson urged that the evacuation order should be reversed.
D. Justice Roberts dissented.
1. Fred Korematsu had been subjected to conflicting orders to leave the
military area and to stay put, and as such he had his due process
rights violated.
IV. The Impact of the Decision.
A. In constitutional terms, the opinion was one link in a chain that led to
the Supreme Court’s recognition that the Fifth Amendment’s due
process clause contains a guarantee of equal protection as a substan-
tive limit on the national government. In this regard, the case was an
important precedent for the ruling in Bolling v. Sharpe (1954) that out-
lawed separate-but-equal schools in the District of Columbia.

57
 B. Korematsu also announced the principle that strict scrutiny would be
applied to any legal restrictions that would limit the civil rights of a
group of people based on race.
C. At the same time, the constitutional scholar Eugene Rostow has aptly
designated Black’s opinion, and the entire set of internment cases, as a
“disaster.” It is worth noting that on the same day the Court announced
Korematsu, it also handed down its opinion in Ex Parte Endo. The jus-
tices avoided deciding the constitutionality of internment, but did find
that the evacuation program had not authorized prolonged detention of
citizens whose loyalty was conceded.
D. The Supreme Court evaded issues, refused to examine factual
assumptions underlying the argument about “military necessity,” and
developed a test which it failed to apply at the most critical moment in
the history of civil liberties in the nation’s history.
E. Historian Peter Irons discovered in government archives clear evidence
that federal authorities had deliberately misled the Supreme Court with
regard to the military necessity for the evacuations.
F. In 1976 President Gerald Ford issued a proclamation admitting a
“national error” as a result of the internments.
G. In 1984 a federal district court set aside the convictions of Fred
Korematsu, Gordon Hirabayashi, and Minoru Yasui. See 584 F. Supp.
1406 (1984)
H. In 1988, the Congress of the United States offered an official apology
to all Japanese-Americans who had been interned.

Summary
Korematsu v. United States stands as a harsh reminder of how easily justice
can be betrayed, even in the Supreme Court of the United States. While the
hysteria surrounding the attack on Pearl Harbor and the threat of a Japanese
invasion of the West Coast were real enough, it is equally clear that in this crit-
ical moment the American constitutional system in general and the Supreme
Court in particular gave greater weight than they should have to issues of
security over liberty.
LECTURE NINE

58


FOR GREATER UNDERSTANDING

Questions

1. Why do you think it took the United States so long to make reparations?
2. There is a great deal of debate over whether Executive Order 9066 also
applied to German/Italian-Americans in 1942. Research more information
on German/Italian-American internment.

Suggested Reading

Irons, Peter. Justice at War. New York: Oxford University Press, 1983.

Other Books of Interest

Hata, Donald. Japanese Americans and World War II: Exclusion, Internment,
and Redress. Wheeling, IL: Harlan Davidson, 1995.
Howes, Kelly King. World War II: Biographies. Detroit, MI: Gale Group, 1999.
Irons, Peter. ed., Justice Delayed: The Record of the Japanese American
Internment Cases. Middleton, CT: Wesleyan University Press, 1989.
Leuchtenburg, WIlliam E. The Supreme Court Reborn: The Constitutional
Revolution in the Age of Roosevelt. New York: Oxford University
Press, USA, 1996.

59
 Lecture 10:
Simple Justice::
Brown v. Board of Education of Topeka (1954, 1955)

The Suggested Reading for this lecture is Richard Kluger’s Simple

Justice: The History of Brown v. Board of Education and Black
America’s Struggle for Equality.

Importance of Brown v. Board of Education of Topeka

The Supreme Court found that despite efforts by southern public schools to
equalize classrooms by such “objective” factors as teacher quality, curricu-
lum, and facilities, the persistence of intangible issues related to race contin-
ued to foster inequality. Racial segregation in public education had a detri-
mental effect on minority children because it is interpreted as a sign of inferi-
ority. Therefore, the long-held doctrine that separate facilities were permissi-
ble provided they were equal was rejected. Separate but equal is inherently
unequal in the context of public education. The unanimous opinion sounded
the death-knell for all forms of state-maintained racial separation and opened
a new, more active role for the Court in settling major social issues.
The Plaintiff
Oliver Brown tried to enroll his daughter, Linda, in Sumner School, but was
turned away. Brown’s daughter was expected to attend the all black Monroe
School. Thurgood Marshall, a lawyer for the National Association for the
Advancement of Colored People (NAACP) and later a Supreme Court
Justice, argued the case for Brown.
The Defendant
Board of Education of Topeka was represented by John W. Davis, a legal
powerhouse. He had argued in excess of 250 cases before the Court. Davis
was also considered by some critics to be a gentleman “racist.”

Introduction
The cases Brown v. Board of Education, 347 U.S. 483 (1954) and Brown v.
Board of Education, 349 U.S. 294 (1955) are known respectively as Brown I
and Brown II. With a non-technical, direct, and unanimous opinion, the
Supreme Court in Brown I ushered in a revolution in racial and social rela-
tions by ending the practice of segregation of public facilities by race; with a
nod to political and social reality the justices in Brown II commenced that
revolution with “all deliberate speed.” The decisions were a triumph for the
National Association for the Advancement of Colored People and its Legal
Defense Fund, but its full impact only began to be realized with the passage
LECTURE TEN

of the Civil Rights Act of 1964. Brown I was argued December 9, 1952, rear-
gued December 8, 1953, and decided May 17, 1954 by a vote of 9 to 0.
Chief Justice Earl Warren wrote the opinion of the Court. Brown II was
argued April 11–14, 1954 and decided May 31, 1955 by a vote of 9 to 0.
Chief Justice Warren wrote for the Court.

60
III. The Background of the Case.
A. In the 1880s many southern states began to impose laws that segre-
gated public facilities by race. The Supreme Court in Plessy v.
Ferguson (1896) gave constitutional backing to these laws and they
continued to spread to all aspects of public life in the South.
B. Charles Garland, a Boston millionaire, provided substantial money to
establish the Garland Fund in 1922, and in 1929 some of these dollars
went to create the NAACP's Legal Defense Fund, the purpose of which
was to “give the Southern Negro his constitutional rights.”
C. As the NAACP’s Legal Defense Fund began enjoying several success-
es in a series of cases designed to enforce the true meaning of sepa-
rate but equal from Plessy, it turned its attention to segregation in
public schools.
D. Five lawsuits were constructed including Brown v. Board of Education
of Topeka.
E. Oliver Brown tried to enroll his daughter in Sumner School, a short five
blocks from her home. He and his daughter were turned away. Brown’s
daughter was expected to attend the all black Monroe school.
F. Linda Brown had to walk between railroad tracks to catch the bus to
school. After being turned away, Oliver Brown went to the NAACP,
which filed suit.

The Composition of the Supreme Court

at the Time of Brown v. Board of Education

Chief Justice Warren joined the Court just before the reargument of this case.
Felix Frankfurter, appointed by Franklin D. Roosevelt, urged re-argument of
the case after seeing the strong division among justices.
William O. Douglas, appointed by Franklin D. Roosevelt, was a strong sup-
porter of de-segregation from the beginning.
Harold H. Burton, appointed by Truman, a Democrat, was the only
Republican appointed to the Supreme Court from 1933 to 1953.
Sherman Minton, appointed by Harry S. Truman, was a strong advocate of
Roosevelt’s “Court Packing” plan.
Tom C. Clark, was appointed by Truman who later said that Clark’s appoint-
ment was one of his greatest mistakes.
Robert Jackson, appointed by Franklin D. Roosevelt, had suffered a heart
attack but left his sickbed to be present on the bench at the announcement of
the Brown decision.
Stanley Reed initially intended to uphold the separate-but-equal doctrine.
Hugo L. Black was a controversial Roosevelt appointee because he had
once been a member of the Ku Klux Klan.

61
 G. Chief Justice Fred Vinson and other members of the Court were reluc-
tant to hear the cases, both for the probable trouble they would cause
the Court and the clear precedent established by Plessy in favor of
racial segregation.
III. The Social, Political, and Constitutional Issues in Controversy.
A. After more than sixty years of legal segregation in the South a similar
although de facto scheme of segregation had appeared in the North's
urban ghettos.
B. Segregation and limitations on black voting in the South had become
not just a way of life but one of the important mechanisms by which the
Democratic party retained political control of the region.
C. In constitutional terms, the case raised anew the meaning of equal
protection of the laws under the Fourteenth Amendment and, in the
case of Bolling v. Shape, whether the due process clause of the Fifth
Amendment could be read in such a way as to eliminate racial segre-
gation in areas controlled by the federal government, in this instance
the District of Columbia.
III. The Arguments Before the Court and Who Made Them.
A. For Brown:
1. Thurgood Marshall, legal counsel for the NAACP, was the great-
grandson of a slave and son of a dining car waiter. He studied at
Howard University under Charles Hamilton Houston, who turned the
school into a training center for black attorneys to pursue civil rights
litigation. Marshall was later appointed to the Supreme Court by
Lyndon B. Johnson.
2. Marshall argued that Kansas’ racial restrictions were unconstitutional.
3. Appellants were denied equal educational opportunities and were
negatively affected by this denial.
B. For Board of Education of Topeka:
1. John W. Davis was a legal powerhouse. He had argued more cases
before the Supreme Court than any other lawyer in the twentieth
century (in excess of 250 cases). Davis had also been appointed
solicitor general by President Wilson and had argued for numerous
liberal causes such as child labor laws, minimum wage laws, and the
abolishment of the Oklahoma “grandfather clause.” At the same
time, many considered Davis to be a gentleman “racist.”
2. Davis argued that constitutionally statutes that permit but do not
enforce segregation do not violate the Fourteenth Amendment’s
equal protection clause.
3. Kansas had a history of segregation, but it had produced
LECTURE TEN

little criticism.
4. Legislatures should be the deciding body on segregation because it
involved the police power.

62
 5. Political and social equality are different, thus the Fourteenth Amend-
ment only applies to political equality.
6. The law of Plessy is clear: separate-but-equal is constitutional.
7. Following the first argument, the Court was divided and uncertain
about how to resolve this case. After the decision to order
reargument, the Court asked the United States to file an amicus curi-
ae brief. The newly elected Eisenhower administration did not want to
get involved with the segregation matter. Eisenhower had won four
southern states and he did not want to alienate them. Additionally, the
Republicans had captured the House and Senate as well. The party
did not want to become involved in such a divisive issue. However,
the administration reluctantly filed in support of desegregation.
D. The Court decided to postpone a decision and scheduled a reargument
of the cases for October 1953.
E. During the summer, Marshall organized an extensive research effort by
historians and social scientists to establish the intent of the framers of
the Fourteenth Amendment. That research underscored that the
framers of the amendment had intended that it be broad and equalitari-
an, a finding directly at odds with Plessy. It also purported to demon-
strate the harmful effect of segregation on black children.
F. On September 8, 1953, Chief Justice Fred Vinson, the staunchest sup-
porter of Plessy, died suddenly. Chief Justice Warren was appointed.

IV. The Decision of the Court.

A. Brown I was a 9-0 decision holding segregation in public schools was
unconstitutional. Chief Justice Warren for the Court:
1. Consolidation of four cases is justified because all addressed a com-
mon legal question.
2. Segregation, regardless of circumstances, deprives minority children
of equal educational opportunities.
3. Segregation generates feelings of inferiority that are irreversible.
4. Holding in Plessy is not supported by “modern authority” and current
psychological knowledge.
5. In public education, separate facilities are inherently unequal.
6. The decision was based on the Equal Protection Clause and discus-
sion of the Due Process Clause was unnecessary.
7. In Bolling v. Sharpe, the Court held that the Due Process Clause of
the Fifth Amendment forbade racial discrimination by the federal gov-
ernment just as the Equal Protection Clause of the Fourteenth
Amendment restricts the states.
8. Parties were requested to provide argument on the issue of remedy.
B. Brown II. 9-0 decision. Chief Justice Warren for the Court:
1. Racial discrimination and segregation in the public schools
is unconstitutional.

63
 2. School authorities have the primary burden of carrying out
this principle.
3. Federal district courts are responsible for enforcement and retain
jurisdiction during a transitional period.
4. Defendants are required to make a prompt and reasonable start
towards compliance.
5. District courts are to see that all parties to the case are admitted
to public schools on a non-discriminatory basis, “with all
deliberate speed.”

IV. The Impact of the Decision.

A. The Brown decision dismissed centuries of custom and began the ven-
ture of seeking democratic equality through the judicial system.
B. While Marshall and colleagues were elated at first, they quickly realized
that Brown was just the beginning.
C. Many southern officials labeled the day of the announcement as “Black
Monday.” Most southern members of Congress signed a “Southern
Manifesto” denouncing the decision.
D. In 1957 in Little Rock, Governor Orval Faubus ordered the National
Guard to physically prevent black students from attending Central
High School. In response to a federal court order Faubus removed
the National Guard and allowed violence to break out. President
Eisenhower reluctantly federalized the National Guard and ordered
U.S. Army troops to restore order and escort black students to
their classes.
E. Following the events in Little Rock, a federal judge allowed the school
districts to suspend segregation for two and a half years. The NAACP
challenged this decision and in 1958 in Cooper v. Aaron, all nine mem-
bers of the Court signed a 9-0 opinion directing local officials to end
resistance to Brown.
F. Issues of white flight and de facto segregation complicated the success
of desegregation. The Court eventually became involved in issues of
bussing and other matters to ensure desegregation (Swann v.
Charlotte-Mecklenberg Board of Education [1970]).
G. In the middle 1990s, after several rulings from a more conservative
Supreme Court, many federal judges abandoned the issue of desegre-
gation. They asserted that local officials had made a good faith effort to
desegregate and that is all that could be required.
H. According to the Harvard Project on School Desegregation, progress
toward desegregation is being steadily reversed. Many schools are just
as segregated and materially unequal as before Brown.
LECTURE TEN

I. Brown has also remained at the center of the debate over racial equali-
ty. Many criticize Brown for continuing to allow distinction based on
race. They believe that Brown should have taken a more race neutral
position such as the dissent in Plessy, which held that the Constitution

64
 did not allow for any distinction. Such a decision would have framed the
development of affirmative action policies differently.
Summary
Earl Warren’s decision in Brown I made the outcome of the case seem
almost inevitable, but it was anything but that. Instead, the case is best
understood as a testament to the more than three decades of litigation
brought by the NAACP to build a set of precedents sufficient to challenge if
not directly overturn Plessy. The stark reality of Jim Crow and the brutality
associated with its administration put the Court in a position to elevate the
quality of American constitutionalism. It did that, but in the process it also
marked the beginning of substantive changes in American society and in the
ways in which the Supreme Court exercised its powers to interpret the
Constitution conclusively.

65


FOR GREATER UNDERSTANDING

Questions

1. Research Congress’s reaction to this decision. How important was the Civil
Rights Act of 1964?
2. Did Brown v. Board of Education actually end segregation?
3. Without Brown v. Board of Education would “Jim Crow” have continued for
decades? Why? Why not?

Suggested Reading

Kluger, Richard. Simple Justice: The History of Brown v. Board of Education

and Black America’s Struggle for Equality. New York: Knopf, 1976.

Other Books of Interest

Ackerman, Bruce and Jack M. Balkin, eds., What Brown v. Board of

Education Should Have Said: The Nation’s Top Legal Experts Rewrite
America’s Landmark Civil Rights Decision. New York: New York University
Press, 2001.
Eaton, Susan, and Gary Orfield. Dismantling Desegregation: The Quiet
Reversal of Brown v. Board of Education. New York: New Press, 1996.
Horwitz, Morton J. The Warren Court and the Pursuit of Justice: A Critical
Issue. New York: Hill and Wang, 1998.
Irons, Peter. Jim Crow’s Children: The Broken Promise of the Brown
Decision. New York: Viking, 2002.
Kluger, Richard. Simple Justice: The History of Brown v. Board of Education
and Black America’s Struggle for Equality. New York: Knopf, 1976.
Metcalf, George R. From Little Rock to Boston: The History of School
Desegregation. Westport, CT: Greenwood Press, 1983.
Patterson, James T. Brown v. Board of Education: A Civil Rights Milestone
and Its Troubled Legacy. Oxford: Oxford University Press, 2001.
Peltason, Jack. Fifty-eight Lonely Men: Southern Federal Judges and School
Desegregation. New York: Harcourt, Brace, and World, 1961.
Tushnet, Mark V. The NAACP’s Legal Strategy Against Segregated
LECTURE TEN

Education, 1925–1950. Chapel Hill, NC: The University of North Carolina

Press, 2005.

66
 Lecture 11:
Abortion, Women, and Equality:
Roe v. Wade (1973)

The Suggested Reading for this lecture is David J. Garrow’s Liberty and
Sexuality: The Right to Privacy and the Making of Roe v. Wade.

Importance of Roe v. Wade

The Court held that a woman's right to an abortion fell within the right to privacy
protected by the Fourteenth Amendment. The decision gave a woman total
autonomy over the pregnancy during the first trimester and defined different lev-
els of state interest for the second and third trimesters. As a result, the laws of
46 states were affected by the Court's ruling and its majority opinion received
sharp criticism.
The Plaintiff
“Jane Roe” was a pseudonym for Norma McCorvey, a carnival worker who
became pregnant. She agreed to participate in the suit so she could have
an abortion.
The Defendant
Henry Wade was the Dallas District Attorney. Wade was widely known for his
prosecution of Jack Ruby in the Lee Harvey Oswald murder case.

Introduction
Perhaps no issue has roiled the constitutional waters in modern times as fully
as abortion. After the middle of the nineteenth century, under the prodding of
physicians wishing to establish the scientific basis of their profession, most
states adopted laws that severely restricted abortion on demand. However,
with the sexual revolution of the 1960s these laws came under increasing
public pressure, especially from women who wanted to terminate an unwant-
ed pregnancy but who had to secure them by clandestine and illegal means.
Roe v. Wade, 410 U.S. 113 (1973) became the landmark case on the abor-
tion issue and in the history of the Court’s use of both judicial review and so-
called scientific evidence. The case was argued December 13, 1971 and
reargued October 11, 1972. It was decided on January 22, 1973 by a vote of
7 to 2. Justice Harry A. Blackmun wrote the opinion for the Court, with
Justices Douglas, Stewart, and Burger concurring and with Justices White
and Rehnquist dissenting.
III. The Background of the Case.
A. Abortion was not an issue in America until the mid-nineteenth century
when the medical profession began a push to enact legislation to restrict
it. Prior to this movement, abortion was allowed under common law until
the point of “quickening,” or the first time a pregnant woman felt the
movement of an unborn fetus (fourth or fifth month of pregnancy).

67
 B. The first statutes made abortion before the time of quickening a lesser
crime than abortions performed after that point, and allowed physicians
to make exceptions when the life of the mother was endangered.
C. By the mid-twentieth century, state legislatures had strengthened many
of those laws and abortion was made largely illegal.
D. The Rubella epidemic in the 1960s revived arguments over the abor-
tion issue. Similarly, the use of the tranquilizer Thalidomide resulted in
severe deformities in children whose mothers had taken the drug. As a
result, in 1967, the American Medical Association called for the liberal-
ization of abortion laws to allow greater exceptions.
E. In addition, the sexual revolution of the 1960s raised new questions
about state bans on birth control and the rights that women and mar-
ried couples had to their personal privacy. Indeed, in Griswold v.
Connecticut (1965) a majority of the Court asserted a constitutional
right to privacy.
F. Abortion rights groups began looking for plaintiffs for cases to challenge
the constitutionality of state bans on abortion.
G. In Texas, Sarah Weddington and Linda Coffee found Norma
McCorvey, a carnival worker who wanted an abortion because she
could not afford to raise a child. McCorvey agreed to participate in the
suit against the Texas abortion bans as long as she remained anony-
mous. In the suit, she was called Jane Roe. McCorvey, unaware of the
challenges involved, believed her lawsuit would be resolved in time for
her to have an abortion.
H. In 1970, Roe sued Dallas County District Attorney Henry Wade. It was
Wade’s responsibility to enforce the abortion laws in Dallas. Wade was
widely known for his prosecution of Jack Ruby in the Lee Harvey
Oswald murder case. He disliked prosecuting abortion cases and often
overlooked abortion counseling clinics.
I. Roe’s case was consolidated with that of Doe v. Bolton, a case of a mar-
ried couple who sought an abortion to avoid possible medical difficulties.
J. A three-judge panel agreed with Roe and struck down the Texas ban
on abortions. The court held that single and married persons had the
right to decide whether or not to have children based upon the Ninth
and Fourteenth Amendments.
K. As the case proceeded, Roe gave birth and then gave her child up
for adoption.
L. The legal team for Roe, however, appealed to the Supreme Court stat-
ing that while a constitutional right had been justified, no remedy had
been provided.
LECTURE ELEVEN

III. The Social, Political, and Constitutional Issues in Controversy.

A. The 1960s was a period of intense social and political ferment that
found more women moving into the workplace, with an aggressive civil
rights movement for blacks, with discontent over the Vietnam War, and
with increasing levels of distrust of government.

68
 B. There was intense conflict generated by new sexual standards.
C. Moreover, there were increasing differences among religious, medical,
and political groups about abortion, and these were complemented by
class divisions.
D. There was also a growing interest in developing a so-called right to pri-
vacy, a right not enumerated in the Constitution, but one that could be
inferred from various constitutional clauses in combination, such as the
Fourteenth, Ninth, and the Fourth Amendments.
E. The key constitutional issue was whether the due process clause of the
Fourteenth Amendment provided for a right to privacy, a right nowhere
written in the Constitution.
III. Arguments Before the Court and Who Made Them.
A. For Roe:
1. Sarah Weddington and Linda Coffee represented Roe. Neither
Weddington nor Coffee had argued before the Supreme Court prior
to this case.
2. They argued that women were unduly burdened by pregnancy. The
ban on abortion in Texas and denial of reproductive choice negatively
impacted the well-being of women.

The Composition of the Supreme Court

at the Time of Roe v. Wade

William Brennan, Jr., appointed by Eisenhower, along with Justice Douglas,

pressured Blackmun to write a decision granting women substantial choice,
based on privacy.
Thurgood Marshall was a supporter of civil liberties.
Chief Justice Warren Burger was appointed by Nixon because of his
conservative background.
Harry Blackmun was former legal counsel for the Mayo Clinic.
William O. Douglas, hoped to draft the opinion for the Court, but he went
through seven drafts of an opinion for the Doe case, which was written in
such a way that it could have easily been used for Roe.
Potter Stewart, appointed by Eisenhower, sided with the majority.
Byron White, appointed by Kennedy, strongly believed the issue of abortion
should be left with state legislatures.
William H. Rehnquist, recently appointed by Nixon, joined White in dissent.
Lewis F. Powell, Jr. was also newly appointed and a moderate. During the
Roe controversy a story circulated that at Powell’s Richmond firm he had
helped a young man avoid prosecution for assisting an older woman in
obtaining an illegal abortion.

69
 3. Constitutional support for the right to an abortion included the Ninth
Amendment and both the due process and equal protection clauses
of the Fourteenth.
4. Thus, women had a fundamental right to an abortion and the state
had no compelling interest to justify the denial of such a right.
B. For Henry Wade:
1. Jay Floyd was the assistant attorney general for the State of Texas.
His superiors, Robert Flowers and Crawford Martin, viewed abortion
as the equivalent of murder.
2. Women made their choice before they became pregnant by deciding
to live under Texas abortion laws.
3. States had a compelling interest in protecting fetal life at all
times, since a fetus was considered to have life from the moment
of conception.
C. At the first hearing on December 13, 1971, only seven justices were
present. Two vacant seats had not yet been filled. To fill the vacancies,
Nixon appointed Justices Powell and Rehnquist. Meanwhile, Blackmun
had been assigned to write the opinion of the Court, a task he did not
enjoy. Justices Brennan and Douglas were so displeased with the
selection of Blackmun and his draft opinion, that they refused to sign
the opinion.
D. For Roe:
1. Sarah Weddington again argued for Roe. Roy Lucas, who had
assisted her with the preparation for the first argument, tried to per-
suade her to let him argue the second hearing. Weddington,
however, insisted that she present the oral argument.
2. There was substantial precedent for establishing by implication the
existence of rights not explicitly articulated in the Constitution, such
as sex, contraception, procreation, childbearing, and the education
of children.
E. For Wade:
1. Robert Flowers argued for Wade this time. (In Texas, Attorney
General Martin had been defeated in a recent election and so Martin,
Flowers, and Floyd were all looking for new employment. Flowers
admitted that this detracted from his preparation for the argument
before the Court.)
2. A fetus is a person with constitutional rights and the state has a com-
pelling interest in protecting the rights of this “silent minority.”
3. The balance between the rights of the mother and the rights of the
LECTURE ELEVEN

unborn child were best determined by the state legislature.

IV. The Decision of the Court.
A. Justice Blackmun for the Court overturned the Texas ban on abortion.
1. Common law through much of history has accepted abortion.

70
 2. A fetus is not a “person” under the Constitution of the United States.
After reviewing the appearance of the word “person” in the
Constitution, Blackmun concluded that the person used in the
Fourteenth Amendment does not include the unborn.
3. The Court will not determine when life begins.
4. Pregnant women have a privacy right based on the decision
in Griswold.
5. Up to the first trimester, an abortion procedure is safer than
childbirth, in terms of a woman’s health. However, as the pregnancy
progresses past the first trimester, regulations that relate to the moth-
er’s health are permitted.
6. Viability is the point where the state gains a compelling interest in the
protection of the fetus. Viability was defined as the ability to live out-
side the mother’s womb.
B. Justice Burger provided a concurring opinion that clarified that the
Court does not support abortions on demand.
C. Dissenting opinions of Rehnquist and White:
1. Majority opinion had invented a right not contained in the
Constitution.
2. Division of trimesters is unsupportable. If the state had a legitimate
interest in fetal health, it should continue throughout the pregnancy.
3. Decision supported the convenience of the mother above the life of
the fetus.
4. The division of a pregnancy into three terms and the variation of
rights based upon the terms is a form of judicial legislation rather
than interpretation of the drafters’ intent.
IV. The Impact of the Decision.
A. Most women’s rights groups applauded the decision. It was seen as a
step forward in gender equality.
B. The decision infuriated pro-life groups and it served as a catalyst for an
increase in the activity of conservative groups. It fueled a growing anti-
abortion movement that at times has become quite violent. Shortly after
the announcement, numerous Catholic magazines called for the
excommunication of Justice Brennan.
C. Roe brought the Court into the political arena. There were regular
demonstrations opposing the Court, its decision, and specifically
Justice Blackmun.
D. The number of abortion cases appealed to the Court skyrocketed.
E. The Bush administration in Planned Parenthood v. Casey (1992) asked
the Court to overturn Roe, but it refused to do so. However, for the first
time, the justices imposed a new standard to determine the validity of
laws restricting abortions. The new standard asks whether a state abor-
tion regulation has the purpose or effect of imposing an “undue burden,”

71
 which is defined as a “substantial obstacle in the path of a woman seek-
ing an abortion before the fetus attains viability.” Under this standard,
the only provision to fail the undue-burden test was the husband notifi-
cation requirement of the Pennsylvania law in question. The opinion for
the Court was unique: It was crafted and authored by three justices.
F. Other cases heard by the Court involved the restraining of abortion pro-
testers in the interest of protecting abortion doctors and counselors.
G. In 2000, the Court again supported the right to an abortion by voiding a
Nebraska law that banned so-called partial-birth abortions. The Court,
however, was bitterly divided in Stenberg v. Carhart, 530 U.S. 914
(2000), so much so that it is clear that Roe remains vulnerable with a
further change in the ranks of the justices.
Summary
Abortion remains one of the most vexing constitutional issues before the
Court and it will form the center of political discussion about the appointment
of future justices to the high court, given the close and strong divisions among
the existing justices. Perhaps like the desegregation of public schools, this
public policy issue will be laid to rest only when the justices can reach an
unshakable unanimity that can help forge a national consensus. That moment,
given the composition of the Court, seems remote. The case of Roe v. Wade
is also a reminder of the powerful transformative role of the high court in mat-
ters of social and moral disagreement. What is perhaps most impressive con-
stitutionally is that the concept of substantive due process, which was invoked
from the mid-nineteenth through the first third of the 20th century, has now
become the means by which to establish a broad, new, and non-economic
right to privacy. If nothing else, Roe is a reminder of the extraordinary power
that the high court has achieved and the extent to which that power has
created a federal right that supercedes any state rule on abortion.
LECTURE ELEVEN

72


FOR GREATER UNDERSTANDING

Questions

1. How has the definition of what human life is changed since Roe v. Wade?
Has new technology given rise to new debates?
2. “Jane Roe” or Norma McCorvey no longer supports abortion rights. Why?
3. When Roe v. Wade was decided in 1973, abortion, except to save the
mother’s life, was banned in nearly two-thirds of the states. Many of those
statues are still on the books, waiting for the Supreme Court to overrule
Roe. How is this possible?

Suggested Reading
Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making
of Roe v. Wade. New York: Macmillan, 1994.

Other Books of Interest

Faux, Marian. Roe v. Wade: The Untold Story of the Landmark Supreme
Court Decision that Made Abortion Legal. New York: Macmillan, 1988.
Hull, N.E.H. and Peter Charles Hoffer. Roe v. Wade: The Abortion Rights
Controversy in American History. Lawrence, KS: University Press of
Kansas, 2001.
McCorvey, Norma. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice.
New York: HarperCollins, 1994.
Rubin, Eva. Abortion, Politics, and the Courts: Roe v. Wade and Its
Aftermath. New York: Greenwood Press, 1987.
Stevens, Leonard A. The Case of Roe v. Wade. New York: G.P. Putnam’s
Sons, 1996.

73
 Lecture 12:
Presidential Immunity and Watergate:
United States v. Nixon (1974)

The Suggested Reading for this lecture is Stanley I. Kutler’s The Wars
of Watergate.

Importance of United States v. Nixon

The case raised the fundamental question of whether the President was
above the law and the associated question of whether the Supreme Court,
specifically, and the federal courts, generally, could force him to abide by the
law. Because the case arose during the desperate days of the Watergate
Affair, the decision by the justices formed one of the most pregnant moments
in the history of the nation's Constitution. By deciding that the President had
to abide by “the fundamental demands of due process of law in the fair
administration of justice,” the Court reaffirmed its authority and forced the
beleaguered President Nixon to obey a subpoena and to produce tapes and
documents involving the break-in at the Watergate office building. President
Nixon resigned shortly thereafter.
The Plaintiff
United States was represented by special prosecutor, Leon Jaworski, who
issued a request for tapes recorded by President Nixon of conversations he
had with many of his top aides. His request was refused by President Nixon.
Federal district court judge John Sirica issued a subpoena for the tapes.
The Defendant
President Richard Nixon refused to turn over the tapes. Nixon’s attorneys
argued that this action was nonjusticiable since it was a dispute between the
executive and legislative branches of government, and that the president had
broad immunity while in office from the criminal justice process.

Introduction
Above all else, the Supreme Court is a legal institution, unquestionably the
most powerful in the nation. Among its most important duties is preserving
the rule of law and maintaining the separation of powers among the three
branches of government. Its role in both of these areas was tested definitive-
ly in the case of United States v. Nixon, 418 U.S. 683 (1974), when it upheld
an order to President Richard Nixon that he had to turn over to the investi-
gators of the Watergate break-in tape recordings made in the Oval Office of
LECTURE TWELVE

the White House. President Nixon insisted that the conversations that had
taken place in that office were protected from public scrutiny because they
were documents protected by the concept of executive privilege. In essence,
Nixon claimed that the president has a right to keep some materials from the
public in order that he can conduct the business of government. He lost, not
only his control of the tapes but ultimately his presidency. The case was

74
argued July 8, 1974, and decided July 24, 1974, by a vote of 8-to-0. Chief
Justice Warren Burger wrote the opinion for the Court. Justice William H.
Rhenquist, who had served from 1969 to 1971 as assistant attorney general
for the Office of Legal Counsel, a position in which he had supported execu-
tive authority to order wiretapping and surveillance without a court order,
recused himself from participating.
III. The Background of the Case.
A. President Richard Nixon had steadily battled Congress over a host of
issues, especially the Vietnam War and judicial appointments, and at
one point he became so frustrated with Congress that he urged his staff
to have the Internal Revenue Service audit every member of Congress.
B. Nixon in 1972 easily won the Republican presidential nomination and
was a favorite to defeat the Democratic candidate, George McGovern.
C. However, on June 17, 1972, a security guard discovered five men in
the Watergate Building in Washington D.C., in the offices of the
Democratic National Committee.
D. The Watergate burglars were tried and convicted before federal judge
John Sirica. Before sentencing, one burglar told Judge Sirica that they
had been pressured to lie to cover up White House involvement.

The Composition of the Supreme Court

at the Time of United States v. Nixon

Warren Burger was appointed Chief Justice by Nixon.

Harry A. Blackmun was appointed by Nixon.
Potter Stewart believed that the special prosecutor lacked standing to pre-
sent a case against the president and therefore the Court should not hear it.
William O. Douglas, who was appointed by Franklin D. Roosevelt, was still
resentful over the Nixon administration’s support of his impeachment in 1970.
William Brennan, another Eisenhower appointee, after realizing that all of
the justices agreed that Nixon should furnish the tapes, pushed for a unani-
mous decision.
Thurgood Marshall, appointed by Johnson, along with Justices Douglas and
Brennan favored writing a broad opinion that would limit the concept of exec-
utive privilege.
Byron R. White, a Kennedy appointee, along with Justice Powell favored
a narrow opinion that would leave the Court more flexibility in dealing with
the issue.
Lewis Powell was appointed by President Nixon.
William H. Rehnquist was a Nixon appointee, but recused himself because
of a conflict of interest.

75
 E. Soon Watergate turned into one of the nation's greatest political scan-
dals. Congress forced the administration to appoint a special prosecu-
tor, Archibald Cox. The office of special prosecutor was to be indepen-
dent from the administration.
F. Next, a federal grand jury indicted seven of the president’s top aides
and campaign officials for conspiracy to obstruct justice. Nixon was
named as an “unindicted co-conspirator.”
G. Through testimony given by Alexander Butterfield, one of the
president’s former aides, before a joint congressional committee inves-
tigating the Watergate Affair, Cox learned that the president taped
many of his Oval Office meetings.
H. Cox subpoenaed the tapes. Nixon refused to give up the tapes and
ordered Attorney General Elliot Richardson to fire Cox. Richardson
refused and resigned, along with the deputy Attorney General, William
Ruckelshaus, over the issue. However, Richardson encouraged the
next-in-line Justice Department official, Robert Bork, to comply with the
President’s request because he knew if Bork would not, the President
would soon find someone who would. Having Bork follow the President
and stay with the Justice Department would maintain some continuity in
the Department, which satisfied Richardson.
I. Cox’s dismissal and the resignation of Richardson and Ruckelshaus
became known as the “Saturday Night Massacre” and enraged the
American public. Consequently, another special prosecutor, Leon
Jaworski, was named and charged with the same responsibilities.
Jaworski obtained another subpoena for the tapes. Nixon again refused
to furnish them.
J. Federal District Court Judge John Sirica, in Washington, D.C., heard the
case and ordered the President to deliver the tapes for an in camera
(“private”) inspection, but Nixon brushed the court’s action aside.
K. Nixon’s lawyers planned to take the issue to an appeals panel, but as
impeachment hearings against Nixon were looming, Jaworski asked the
Supreme Court to take up the matter on an expedited review. The
Court agreed to hear the case because of the immediate importance
and the profound Constitutional issues it raised.
L. Spectators lined up two days in advance hoping to witness the argu-
ments before the Court.
III. The Social, Political, and Constitutional Issues in Controversy.
A. The Vietnam War had produced profound and continuing controversy
and much of it had been directed at President Nixon, who asserted that
he had a “secret plan” to end the war.
LECTURE TWELVE

B. The protest against the war clearly angered Nixon and bred in him
a deep suspicion of his opponents and even some of his closest
political friends.
C. At the same time, Nixon enjoyed remarkably strong support from
what was then termed the “silent majority,” who held strong patriotic

76
 views about the war and who viewed the war protesters as part of a
hippie counterculture.
D. Nixon, who had run his first campaign on a platform of law and order,
found himself in the ironic position, as a result of the revelations of the
tapes and the actions of some of his associates with the Watergate bur-
glars, of having to argue that he was, because he was president, immune
from orders by courts to produce documents and other materials.
E. Is there a constitutionally supported doctrine of executive privilege and
how far does it extend?
F. Does the separation of powers prevent the Court from hearing a matter
that is contained within one branch of the federal government?
G. Can a subordinate sue the president under whom he serves?
H. Which takes precedence, the confidentiality of the president or the
availability of evidence?
I. Are acts of the president reviewable by the courts or is he supreme in
his interpretation of his constitutional duties and powers?
III. Arguments Before the Court and Who Made Them.
A. For the United States:
1. Leon Jaworski, a prominent Texas lawyer and recent American Bar
Association President, had handled legal matters for Lyndon B.
Johnson and both John F. and Robert Kennedy. However, Jaworski
also strongly supported the Nixon re-election. Jaworski’s varied
experience and professional reputation protected him from any accu-
sations of being either partisan or ideologically motivated in his pros-
ecution of the president. He was assisted by Philip A. Lacovara.
2. President acted as the sole judge of the Constitution, which is in con-
flict with the powers and responsibilities he had been delegated
under the Constitution.
3. Executive privilege is not a constitutional power, but instead a power
derived from common law.
4. Executive privilege should be defined with narrow rights and powers.
Such privilege should not and historically has not included withhold-
ing evidence in a criminal matter.
B. For Nixon:
1. James St. Clair, an experienced trial lawyer and partner in a presti-
gious law firm, rarely met with Nixon alone. He mostly worked
through Nixon’s Chief of Staff.
2. The conflict over the subpoena is an issue between two members of
the executive branch and therefore is not in the jurisdiction of the
Court; that is, the matter was not justiciable.
3. President should determine the scope of executive privilege without
the aid of the Court.

77
 4. The possible impeachment of the president, which is a political
ratherthan a legal proceeding, makes the disposition of the
Watergate tapes a political issue that should be resolved politically.
5. The President can be tried according to law only by impeachment.
He cannot be indicted.
IV. The Decision of the Court.
A. Chief Justice Burger wrote for a unanimous Court, 8-0.
B. The matter was entirely justiciable, since Attorney General Bork had
contact with Congress. The principle of separation of powers created a
duty for the Court to determine the law regarding executive privilege, just
as the Court had previously defined the limits of congressional immunity.
C. On the critical question of executive privilege, the justices held that
executive powers were not absolute, but instead the legitimate need of
the judicial process can supercede presidential privilege.
D. At the same time, confidentiality is necessary for the operation of
government, but so also is full evidence for criminal and other
judicial proceedings.
E. Due process, as prescribed by the Fifth Amendment, requires that all
relevant and admissible evidence be produced.
F. The president was entitled to great deference, especially in matters
involving defense and national security, and that all presumptions were
in his favor. However, in this instance, the special prosecutor had par-
ticularized and precisely stated a need for the tapes, both with respect
to credibility of witnesses and for establishing the alleged crime.
G. The unanimity of this decision was unusual. During the 1973–74 term,
the majority of decisions had split the Court either 5-4 or 6-3.
IV. The Impact of the Decision.
A. Nixon was ordered to give up the tapes which ultimately contained the
“smoking gun” linking him to the conspiracy to obstruct justice. He
resigned his office less than three weeks later and three days after he
surrendered the tapes.
B. Nixon’s surrender of the Watergate tapes continues a tradition of presi-
dential obedience to the Court.
C. The Court’s carefully crafted decision again expanded its power of
judicial review.
Summary
United States v. Nixon was a major landmark in the constitutional history of
the nation and in the continuing development of the power of the Supreme
LECTURE TWELVE

Court. The case made clear that the president was not above the law and
that on questions about the scope of the presidential prerogative it was the
justices who would have the final word. Given the potential for conflict
between the branches of government, especially when one party controls the
Congress and the other the executive branch, the issues raised in this case
are almost certain to surface again.

78


FOR GREATER UNDERSTANDING

Questions

1. This decision determined that the president can not be forced to share with
other branches of government information that could place the U.S. mili-
tary, diplomatic, or national security relations at risk. What is your opinion
regarding the effect presidential misconduct has on these issues?
2. Where does the concept of “executive privilege” originate since it is not in
the Constitution?

Suggested Reading

Kutler, Stanley I. The Wars of Watergate. New York: Random House, 1990.

Other Books of Interest

Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, MA:

Harvard University Press, 1974.
Friedman, Leon. ed., United States v. Nixon: The President Before the
Supreme Court. New York: Chelsea House Publishers, 1974.
Jaworski, Leon. The Right and the Power: The Prosecution of Watergate.
New York: Crowell, 1976.
Nixon, Richard M. In the Arena: A Memoir of Victory, Defeat, and
Renewal. New York: Simon & Schuster, 1990.
Pynn, Richard E., ed. Watergate and the American Political Process. New
York: Praeger, 1975.

Articles of Interest

Bernstein, Barton J. “The Road to Watergate and Beyond: The Growth and
Abuse of Executive Power Since 1940,” Law & Contemporary Problems,
40 (1976): 58–86.

79
 Lecture 13:
The Boundaries of Discrimination:
University of California v. Bakke (1978)

The Suggested Reading for this lecture is Howard Ball’s The Bakke
Case: Race, Education, and Affirmative Action.

Importance of Regents of the University of California v. Bakke

The case became a touchstone for the debate over affirmative action and the
sharply divided justices crafted a new law that left the issue almost as uncer-
tain as it was before the Court heard the case. It reminds us of the limits as
well as the breadth of the Court's powers.
The Defendant
Allan Bakke was a thirty-two-year-old white male, working as an aerospace
engineer when he decided he wanted to attend medical school. He was reject-
ed by the University of California’s medical school at Davis, two years in a row.
When he discovered there were sixteen slots left open for minority students,
some of which were admitted with lower test scores than his, he sued and won
in the California Supreme Court.
The Plaintiff
Regents of the University of California were represented by Archibald Cox,
the former solicitor general and a significant figure in the Watergate investiga-
tion. Cox maintained that the state did indeed have the need for affirmative
action programs.

Introduction
This lecture addresses one of the most pressing issues of twentieth-century
Supreme Court activity: the nature of discrimination. In this instance, a white,
college-educated male argued that a program designed to provide opportuni-
ties for racial minorities to attend medical school at the University of California,
Davis amounted to a form of “reverse discrimination.” That is, his place in the
medical school class was taken by another person based on race rather than
merit. Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
was argued 12 October 1977 and decided 28 June 1978 by a vote of 5 to 4.
Justice Lewis F. Powell, Jr. wrote for the Court with various other justices con-
curring and dissenting in part.
LECTURE THIRTEEN

III. The Background of the Case.

A. Allan Bakke was a white male, who believed he was disadvantaged
due to the affirmative action admission policies at the University of
California at Davis. Bakke was rejected by UC Davis two years in a
row, 1973 and 1974.

80
 B. UC Davis medical school admissions reserved sixteen of the one hundred
available positions for minorities from an average total applicant pool of
almost 2500.
C. Bakke’s grades and admission scores were significantly better than the
sixteen who filled the minority spots and whose grades, under the pro-
gram, were not included as part of the admissions process.
D. Bakke filed suit claiming “reverse discrimination” in which prefer-
ences were given to minorities but not to disadvantaged whites.
E. Both the trial court and the California Supreme Court ruled in favor of
Bakke, holding that the university’s admission policy violated the equal
protection clause of the Fourteenth Amendment.
F. The university appealed to the Supreme Court.
III. The Social, Political, and Constitutional Issues in Controversy.
A. By the 1970s the federal government had about thirty affirmative
action programs in place. Similar programs were being adopted by
many state universities and private businesses that worked with the
federal government.
B. The affirmative action program used by the university was challenged
on the grounds that it established quotas that relied on racially exclu-
sionary preferences and there was no evidence that the university
had demonstrated any previous pattern of discrimination.

The Composition of the Supreme Court

at the Time of Regents of the University of California v. Bakke

Chief Justice Warren Burger was a strong advocate of “strict construction.”

After his retirement Justice Lewis F. Powell, Jr. described Bakke as the most
important decision of his career.
William H. Rehnquist frequently argued against his liberal colleagues
Brennan, Marshall, and Blackmun. Rehnquist was often the Court’s lone dis-
senter despite the presence of three other Republican appointees.
William J. Brennan, Jr. proved to be the most influential liberal justice on the
modern Supreme Court.
Harry Blackmun was appointed as a conservative but he turned out to be
very sympathetic to liberal issues.
Byron White clerked for Chief Justice Fred Vinson. White acquired a reputa-
tion for moderation.
Thurgood Marshall supported affirmative action programs nationwide.
Potter Stewart was appointed by Eisenhower.
John Paul Stevens has increasingly been viewed as one of the Court’s liberal
justices, although appointed by Gerald Ford.

81
 C. The constitutional issue was whether the university’s medical school
admissions program discriminated unlawfully against Bakke, either
under the equal protection clause of the Fourteenth Amendment or
Title VI of the Civil Rights Act of 1964, or both.
D. In short, could race be used as a factor in crafting a higher education
admissions program and, if so, was the program at the university valid?
E. Several minority organizations tried to stop the university from appeal-
ing the case because they believed that it was a poor vehicle by which
to test the constitutionality of affirmative action, since the program was
directed at “disadvantaged citizens” and minority students that were
not sufficiently “disadvantaged” were not considered for the program.
On the other hand, only nonwhite applicants had ever been admitted
as disadvantaged.
F. Groups representing Asian-Americans were concerned that the entire
policy worked against them, since they had among the highest test
scores yet were not admitted in numbers equal to their success on
these tests.
III. Arguments Before the Court and Who Made Them.
A. For Bakke:
1. Argued by Reynold Colvin.
2. This was Colvin’s first case before the Supreme Court. Colvin was the
senior member of a small general practice law firm in San Francisco.
Many observers say that Colvin was clearly in over his head.
3. Colvin’s oral argument was unimpressive. Many Bakke supporters
tried to convince Colvin to allow Phillip B. Kurland, a distinguished
University of Chicago legal scholar, to use some of the argument
time, but Colvin refused.
4. Colvin continually asserted that any consideration of race was
unconstitutional: “to the extent that the preference is on the basis of
race, we believe that is an unconstitutional advantage.”
5. Colvin’s strategy was to focus on the constitutionality of racial quotas.
He argued that setting aside sixteen available spots created an invalid
racial quota. Colvin emphasized that any quota, whether it is called affir-
mative action, a special program, or a compensatory program, is illegal.
B. For The Regents of the University of California, Davis:
1. Argued by Archibald Cox, a Harvard Law professor. Cox was former
solicitor general and the initial special prosecutor in the Watergate
investigation (fired by President Nixon in the 1973 Saturday Night
LECTURE THIRTEEN

Massacre). He argued over 60 cases before the Supreme Court, and

he presented his first oral argument before the Court at the age of 30.
2. Cox set the tone for the significance of the case saying, “The
answer which the Court gives will determine, perhaps for decades,
whether members of these minorities are to have the kind of mean-
ingful access to higher education in the professions, which the

82
 universities have accorded them in recent years, or are to be
reduced to the trivial numbers which they were prior to the adoption
of minority admission programs.”
3. Cox argued that the 16 slots for “disadvantaged citizens” did not
create a quota.
4. The quota issue stimulated a number of questions by the justices
to Cox.
5. Cox argued that any program that did not take race into account
would not work to reverse past discrimination.
6. The meritocratic promise of non-discrimination was offset by the
state’s equally compelling concern for the victims of past and con-
tinuing racial injustice.
7. The program also had practical benefits: enriched medical education
through a diverse student body, successful role models for minority
youth, and improved medical services to minority communities.
C. The Supreme Court received fifty-seven amici curiae (friends of the
court) briefs, an extraordinarily large number, and they were from both
supporters and opponents of Bakke, and often some organizational con-
stituencies were divided. The National Education Association’s brief was
against Bakke, while the American Federation of Teachers was for him.

IV. The Decision of the Court.

A. The court voted 5-to-4 that Bakke should be admitted to the University of
California, Davis, Medical School.
B. Six separate opinions were written by the Court. Four Justices con-
curred with part of Powell’s opinion; and as no other opinion command-
ed a majority, Powell’s opinion spoke for the Court.
C. It was eight months before the Court reached a decision, an indication
of the struggle that went on inside the Court over the opinion.
D. In fact, the Bakke “decision” was essentially two decisions, each decid-
ed by a 5-to-4 vote. With each decision Powell cast the deciding vote.
E. Powell’s opinion stated, “On the first question–whether the special
admission program is invalid…there are five votes to affirm the judg-
ment invalidating the special program. Under this judgment, Bakke will
be admitted to the medical school.”
F. “When classification denies an individual opportunities or benefits
enjoyed by others solely because of his race or ethnic background, it
must be regarded as suspect,” Powell wrote.
G. In a note to his opinion, Powell observed that “[t]here are serious prob-
lems of justice connected with the idea of preference itself. First, it may
not always be clear that a so-called preference is in fact benign. Courts
may be asked to validate burdens imposed upon individual members of
a particular group in order to advance the group's general interest.
Nothing in the Constitution supports the notion that individuals may be
asked to suffer otherwise impermissible burdens in order to enhance

83
 the societal standing of their ethnic groups. Second, preferential pro-
grams may only reinforce common stereotypes holding that certain
groups are unable to achieve success without special protection based
on a factor having no relationship to individual worth. Third, there is a
measure of inequity in forcing innocent persons in respondent's posi-
tion to bear the burdens of redressing grievances not of their making.”
H. In answering the second constitutional issue, whether race may be
considered as a factor in an admissions program, Powell said that
some programs can legally take race into account and be lawful.
I. Powell wrote that the state’s goal of educational diversity was the
only justification that was constitutionally permissible and universities
had the power to act as a result of the academic freedom granted
them under the First Amendment. “An otherwise qualified medical
student,” he wrote, “with a particular background–whether it be
ethnic, geographic, culturally advantaged or disadvantaged–may bring
to a professional school of medicine experiences, outlooks, and ideas
that enrich the training of its student body and better equip its gradu-
ates to render with understanding their vital service to humanity.”
J. Powell cited the Harvard admissions program as an example that would
be justified under this scrutiny. Powell observed of the Harvard
program, “race is considered in a flexible program designed to achieve
diversity, but it is only one factor–weighed competitively–against a num-
ber of factors deemed relevant.”
K. Justice Brennan wrote separately arguing for less scrutiny to be applied
to the affirmative action programs. Brennan observed that,
“Government may take race into account when it acts not to demean or
insult any racial group, but to remedy disadvantages cast on minorities
by past racial prejudice.”
L. In his separate opinion, Justice Marshall praised the Court in permitting
universities to consider race with admissions. But he also announced
his displeasure that “after several hundred years of class-based dis-
crimination against Negroes, the Court is unwilling to hold that a class-
based remedy for that discrimination is permissible.”
M. Justice Blackmun wrote of his desire that affirmative action would only
be a temporary solution, and would soon become unnecessary. He
even suggested that this goal be reached within a decade. However,
he conceded that “in order to get beyond racism, we must first take
account of race. There is no other way. And in order to treat some per-
sons equally, we must treat them differently.”

IV. The Impact of the Decision.

LECTURE THIRTEEN

A. The lack of unanimity within the Court resulted in confusion. The New
York Times summarized the decision with “No One Lost.” But it might
also be said, even though Bakke entered medical school, that no one
won either.

84
 B. Attorney General Griffin Bell called the decision “a great victory for affir-
mative action;” the Reverend Jesse Jackson declared it “a devastating
blow to our civil-rights struggle.”
C. Throughout the next decade the Court generally upheld affirmative
action programs; however, the justices remained divided.
D. With the appointments of Justice Scalia and Justice Thomas the Court
has become more critical of affirmative action programs and has
applied increasingly strict scrutiny to their constitutionality.
E. Despite all of this controversy, the post-Bakke era has brought little
change to affirmative action programs, although several cases now
making their way to the Supreme Court may test the delicate balance
struck by Justice Powell in Bakke.
Summary
Few issues continue to stir American political and social debate as much as
affirmative action. In Bakke, the high court clearly recognized that a definitive
ruling on the matter would create a powerful political backlash from one or
the other end of the political spectrum. Thus the justices, who had estab-
lished their authority to decide such constitutional matters conclusively,
retreated from doing so. While the decision has come under fire in recent
years for failing to come to grips with the issue, this case serves as an impor-
tant reminder that often precise resolution of constitutional matters by the
high court does not necessarily serve well the public interest as a whole.
However, lower federal court rulings, notably Hopwood v. Texas, 78 F. 3d
932 (Fifth Circuit, 1966), and successful ballot initiatives to prohibit the use of
race as a consideration in college admissions in California, Washington, and
Florida, have significantly undermined affirmative action programs to promote
student diversity.

85


FOR GREATER UNDERSTANDING

Questions

1. Interestingly enough, after the decision of the Court there was some argu-
ment that Bakke was actually a victim of age discrimination instead of race
since he was older than many of the other applicants. What are your
thoughts?
2. How does the decision of the Court in this case affect admissions policies
today? What is happening in the Courts today?

Suggested Reading

Ball, Howard. The Bakke Case: Race, Education, and Affirmative Action.
Lawrence, KS: University Press of Kansas, 2000.

Other Books of Interest

Dreyfuss, Joel, and Charles Lawrence III. The Bakke Case: The Politics of
Inequality. New York: Harcourt Brace Jovanovich, 1979.
Eastland, Terry, and William J. Bennett. Counting by Race: Equality from the
Founding Fathers to Bakke and Weber. New York: Basic Books, 1979.
Fullinwinder, Robert K. The Reverse Discrimination Controversy. Lanham,
MD: Rowman and Littlefield, 1980.
Lavinsky, Larry M. A Moment on Racially Based Admissions. New York: Anti-
Defamation League, 1977.
Schwartz, Bernard. Behind Bakke: Affirmative Action and the Supreme Court.
New York: New York University Press, 1998.
Simmons, Ron. Affirmative Action: Conflict and Change in Higher Education
After Bakke. Cambridge, MA: Schenkman Publishing Company, 1982.
LECTURE THIRTEEN

86
 Lecture 14:
The Ten Greatest Justices in the
History of the Supreme Court

Introduction
The United States has had just one constitutional convention, in 1787, which
served to establish the new nation and its government. The Supreme Court’s
ongoing interpretation of the Constitution is one reason that we have not had
subsequent conventions. Over the past two centuries, the high court has
established three broad principles: judicial review, judicial independence, and
judicial sovereignty. These principles have made the Court an integral part of
the nation’s governance, not just to settle matters of law but also politics. As
a result, the Constitution and its principles have emerged as a form of civic
religion. If one looks at it from this perspective, it is easy to see the justices
as high priests and their word as the law of the land.
III. What Have We Done in This Course?
A. We have used a select number of the Supreme Court’s most important
cases to follow not only the development of the Court but its impact on
American life.
1. These cases remind us that the high court is something of a
magic mirror that reflects back to us the assumptions and values
of earlier times.
2. They also remind us of the ability of the high court to change its mind
over time. Thus, in Dred Scott (1857) the justices effectively approved
the institution of slavery yet a hundred years later, in Brown v. Board
of Education (1954, 1955) they ended the practice of racial segrega-
tion in public schools.
3. Moreover, these cases remind us that changes in the broader culture
sometimes result in changes in the Constitution, such as the passage
of the Fourteenth Amendment following the Civil War, that created
new interpretive opportunities and responsibilities for the justices.
B. The course also reminds us that the history of the Court can be viewed
not just as the work of the justices, but as a process of social demand
and legal response, in which the lawyers arguing before the justices
have played a particularly critical role.
C. And finally, the course has also made the basic point, drawn from the
words of the Roman philosopher Cicero, that “We are all slaves of the
law, that we may enjoy freedom.”
1. The framers of the Constitution knew and appreciated this
basic insight.
2. One of the most important reasons that we have the high court and
one of the most important reasons it has played such a critical role in
our history, is that it has been essential in establishing and maintain-
ing the concept of the rule of law and with it liberty, both goals at the
center of Cicero’s thinking.

87
 III. Change Within Continuity has Been the Hallmark of the Supreme
Court’s History.
A. The size of the Court has grown, from six to nine.
B. The home of the Supreme Court has changed, from its early quarters in
the Capitol to the Marble Palace of today.
C. Like the federal government as a whole, the Supreme Court has grown
to meet the complexity and demands of those persons seeking its justice.
D. It has become increasingly more visible over the past two centuries and
far more critical in the overall governance of the nation.
E. It has established three key principles in the process of this growth and
change, principles that have made it essential to the governance of the
nation and the rule of law.
1. Judicial review–the right to review and, if necessary, set aside not
only acts of Congress and the President, but also those of state
governments, including state courts and legislatures.
2. Judicial independence–the concept that the Court is free of political
entanglements and that its actions are controlled by principles of law
rather than the vagaries of politics.
3. Judicial sovereignty–the idea that the what the justices say about the
Constitution is final and authoritative.
III. Has the Supreme Court Become Too Powerful?
A. Because the justices have successfully established their right to decide
the meaning of the Constitution and because their decisions almost
always leave one party unhappy, critics of the Court have argued that
they have become too powerful.
B. Yet, it is important to remember that even today, the high court remains
constrained in what it can do.
1. The justices in order to render a decision must have a case and con-
troversy; that is, they simply don't issue opinions on their own.
2. The justices have no real power of enforcement; they must depend
on the other branches to do so and, in many cases, on the good will
of the public to accept what they decide.
3. As Alexander Hamilton wrote in Federalist #78 they command nei-
ther the power of the sword, nor the purse and hence they must rely
on the other branches to both protect and fund them.
4. The justices also are theoretically beholden for most of their jurisdic-
tion to the Congress and they are appointed by the President and
LECTURE FOURTEEN

confirmed by the Senate. In fact, the Court cannot perpetuate itself.

C. Moreover, the justices generally understand that if they try to reach
too far with the power they do have, they are likely to suffer a backlash.
That is what happened in response to Dred Scott (1857) and their deci-
sions involving the New Deal, from which they retreated in West Coast
Hotel v. Parrish.

88
 D. The justices have also increasingly turned, in the twentieth century,
toward materials to support their arguments to sources (sociology, psy-
chology, statistics, and the social sciences generally) outside the law,
and in so doing they have come under some criticism for acting more
like legislators than judges bound by strict legal principles.
E. Yet there is no gainsaying the simple fact that the Supreme Court is a
powerful institution and that its justices today are an integral part of the
American governmental order, so much so that in the highly conflicted
presidential election of 2000 it was the high court that ultimately settled
the issue of who would be president. Interestingly, the American people
as a whole embraced their decision, which resulted in the inauguration
of a president with fewer popular votes than the loser.
F. Chief Justice Charles Evans Hughes once observed that the Court is
not final because it is infallible, but infallible because it is final.

IV. The Court is Also a Human Institution.

A. To understand the Supreme Court, you also have to understand that it
is composed of human beings, justices, who bring a variety of experi-
ences and talents to the bench.
B. The process by which Supreme Court justices are selected (the
President appoints with the advice and consent of the Senate) is now
and has always been a political process.
C. That means some justices have been more talented than others.
D. What are the qualities that make for great Supreme Court justices?
1. The intellectual ability to deal with the complex issues that come
before the Court is critical.
2. An understanding of the law as a subject and as a cultural artifact is
surely important.
3. A vision for what law can be rather than for what it is, especially for
the justices who have to address constitutional issues in periods of
especially great social change, such as the era leading up to the Civil
War and the Great Depression. Some of the greatest justices in the
Court’s history, such as Oliver Wendell Holmes, Jr., and John
Marshall Harlan, were important as much for their dissents, which
were later embraced by the majority, as for the opinions they wrote
for the majority.
4. Leadership and persuasiveness, the ability to encourage people to
see in new ways and then to lead them there.
5. The ability to write not only clearly but persuasively and to argue in
close quarters, such as the Conference, in a way that can build and
hold the votes necessary to establish a majority.
6. In order to be a great justice, it is also necessary to have spent some
extended period of time on the Court. Learning to be a justice,
whether for better or worse, takes time, but it is equally true that the
law moves often gradually and endurance is important in shaping it.

89
 7. Finally, scholars of the Court have conducted a number of surveys
asking lawyers, judges, and academics to rank the ten greatest
Supreme Court justices based on these and related criteria.
E. What justices most closely fit these criteria?
1. John Marshall (1801–1835): The founder of the Supreme Court.
2. Oliver Wendell Holmes, Jr., (1902–1932): The greatest legal
mind to sit on the Court and perhaps its greatest exponent of
judicial restraint.
3. Earl Warren (1953–1969): Led a revolution in constitutional law, one
with which some would disagree, but of which no one would doubt
Warren’s leadership.
4. Louis Brandeis (1916–1939): A great legal mind and perhaps one of
the leading figures on the Court in connecting its work to the larger
social milieu.
5. William Brennan, Jr. (1956–1990): The greatest theoretical voice of
liberal constitutional thought and an ardent champion of civil liberties
and civil rights.
6. Hugo Black (1937–1971): The Court’s most gifted proponent of the
idea of incorporation of the Bill of Rights.
7. John Marshall Harlan (1877–1911): The Court’s greatest dissenter,
not so much for the number of dissents but for his ability to peer into
the future and to argue that the Constitution should be adjusted to
deal with it.
8. Joseph Story (1811–1845): The leading commentator on American
constitutional law in the nineteenth century and a voice for national-
ism as strong as that of John Marshall.
9. Roger B. Taney (1835–1864): The leader of a Court that redirected
the course of American nationalism toward greater attention to state
interests and state power, although his reputation has been savaged
by his pro-slavery opinion in Dred Scott (1857).
10. Robert H. Jackson (1841–1954): The greatest stylist and the most
gifted writer to sit on the Court.
F. There are other justices who might be considered and who other stu-
dents of the Court believe deserve attention. If the list were extended,
they would include.
1. Benjamin N. Cardozo (1932–1938): The greatest common law judge
of the 20th century, although his impact on the Court, given his brief
tenure, was not great.
LECTURE FOURTEEN

2. Charles Evans Hughes (1910–1916, 1930–1941): The only justice to

sit twice on the bench and a person of extraordinary intellect (includ-
ing a photographic memory) who guided the Court through the
storms of the Great Depression and the New Deal.
3. Felix Frankfurter (1939–1962): One of the Court’s greatest advocates
of judicial restraint and fidelity to precedent.

90
 G. Of course, we could also do a list of the worst justices, and that list
would remind us that, in the end, the process of selection is driven as
much by politics as by merit, and it would also remind us that presi-
dents sometimes do not get from their appointees what they thought
they would.
1. President Dwight Eisenhower was asked what was the biggest mis-
take he made while in office, and he replied that it was the appoint-
ments of Earl Warren and William J. Brennan, Jr., who turned out to
be far more liberal than Eisenhower and his Republican party, but
who are on most scholars’ lists of the top ten justices.
2. An old Yugoslav proverb says that “If you want to know what a man
is, place him in a position of authority.”
3. The greatest of our justices have, in the end, been justices who
have grown in response to and been shaped by the authority
vested in them.
Summary
The Supreme Court reminds us throughout its history that the law generally,
and constitutional law in particular, cannot be a game of roulette. We depend
on the justices and the high court to exercise a limited degree of discretion in
support of the nation’s broad goals. The justices have performed this task
with sufficient alacrity that we have not had a second constitutional conven-
tion; indeed, the Court can be viewed as a kind of continuing constitutional
convention. In its history the justices have had to wrestle with the responsibili-
ty of taking account of the will of popular majorities, while at the same time
paying obedience to concepts of fundamental law. Not surprisingly, because
they are human, they have both risen to and fallen short of the challenges
presented to them, as the cases we have examined remind us. Perhaps the
best we can say is that the high court is, like every other feature of American
government, imperfect. Yet its imperfections notwithstanding, it has the
unique role in American life of sustaining the rule of law as it interprets the
Constitution. That is a unique responsibility and one that has over the past
two centuries generated praise, criticism, and controversy. But it is also a
defining element of American governance. As Cicero understood centuries
before the Supreme Court came into existence, “We are all slaves of the law
that we may all enjoy freedom.”

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 OTHER IMPORTANT DECISIONS
OF THE SUPREME COURT

Bush v. Gore (2000)

The hotly contested presidential election of 2000 confronted the Supreme
Court with the stark question of whether it should place itself in the position of
deciding who would become the President of the United States. The Court, of
course historically has played an important part in deciding political issues,
albeit usually disguised as legal disputes. In this case, however, the justices
were being asked to decide how and how many disputed ballots cast in the
presidential election in Florida would be counted.
Noting that the Equal Protection clause guarantees individuals that their bal-
lots cannot be devalued by “later arbitrary and disparate treatment,” the per-
curiam opinion held 7 to 2 that the Florida Supreme Court’s scheme for
recounting ballots was unconstitutional. This case was a milestone in the his-
tory of the Supreme Court and the nation. For the first time, the justices had
determined the outcome of a presidential election, one of the most dramatic
steps ever taken by the justices.
Texas v. Johnson (1989)
Gregory “Joey” Johnson, caught up in the spirit of a protest outside of city
hall in Dallas, Texas, ignited an American flag. He was arrested and convict-
ed under a Texas law that prohibited the “desecration of a venerated object.”
A state appeals court overruled Johnson’s conviction, and the state took the
case to the Supreme Court.
The Court agreed with the state appeals court. This case considered for the
first time whether the First Amendment protects the desecration of the United
States flag as a form of speech.
OTHER IMPORTANT DECISIONS OF THE SUPREME COURT

Furman v. Georgia (1972)

Furman, a black southerner, was caught burglarizing a home by a resident
of the house. In attempting to flee Furman tripped and his gun discharged
killing the resident. Furman was convicted of murder and sentenced to death.
His attorney appealed based on discrimination.
By a narrow majority of five to four, the decision in Furman halted all execu-
tions in the 39 states that sanctioned the death penalty. The majority held
that the death penalty was cruel and unusual punishment, and violated the
Eighth Amendment. The decision forced states to rethink their use of the
death penalty and made all current convictions suspect. Gregg v. Georgia
(1976) reestablished the death penalty.
Miranda v. Arizona (1966)
Ernesto Miranda, an indigent twenty-three-year-old was arrested at his
home and taken to a Phoenix, Arizona police station. There he was ques-
tioned about a rape-kidnapping. At first he maintained his innocence, but
after two hours of questioning the police emerged with a written confession.
Miranda was convicted. Miranda appealed to the U.S. Supreme Court, which
found in favor of Miranda.

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 OTHER IMPORTANT DECISIONS
OF THE SUPREME COURT

Miranda (continued)
According to the decision in this case advising a suspect that he has a right
to remain silent isn’t sufficient. A suspect must also be told of his right to
counsel, either retained or (if he is indigent) appointed.
New York Times Company v. Sullivan (1963)
A city Commissioner in Montgomery, Alabama charged that a fund-raising
ad for Reverend Martin Luther King in the New York Times contained errors
that he believed libeled him. The jury granted him a half million dollars in
damages. In the appeal to the Supreme Court, the New York Times claimed
that the Alabama decision would hamper the right of freedom of speech.
The Court agreed, stating that allowing libel lawsuits like this would “chill”
future criticism of the government leading to “self-censorship.”

Engel v. Vitale (1962)

In New York, the state Board of Regents had prepared a “non-denomina-
tional” prayer for use in schools. In one school the parents challenged the
prayer as “contrary to the beliefs, religions, or religious practices of both
themselves and their children.” The New York Supreme Court upheld the use
of prayer in schools.
The U.S. Supreme Court, however, held that the idea of any form of state-
mandated or sponsored prayer was “a practice inconsistent with the
Establishment Clause” (First Amendment). In the majority opinion, Justice
Hugo Black did comment that the Constitution did not require public life to be
void of all religious observation, but that schools could not sponsor religious
observances. Justice Stewart's dissent charged the majority with misconstru-
ing the meaning of the First Amendment's Religion Clauses.
Mapp v. Ohio (1961)
Seven police officers broke into Dolly Mapp’s Ohio home looking for either a
bomb or gambling paraphernalia. The officers found neither, but instead they
found several allegedly obscene books and pictures. Mapp was arrested and
convicted despite the fact that the officers did not possess a warrant.
In Mapp’s appeal she argued that anything seized during an illegal search is
not admissible in court. The Supreme Court agreed. In the words of Justice
Tom C. Clark: “We hold that all evidence obtained by searches and seizures
in violation of the Constitution is, by that same authority, inadmissible in court.”

Schechter Poultry Company v. United States (1935)

The Roosevelt Administration created the National Industrial Recovery Act
(NIRA) in 1933. It led to the adoption of more than 750 codes designed to
combat unemployment and stimulate recovery for businesses. The codes
were drafted by industry groups and signed by the President. In this case,
certain Brooklyn slaughterhouse operators were found guilty of breaching the
codes, including wage and hour provisions and selling “unfit” chickens.

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 OTHER IMPORTANT DECISIONS
OF THE SUPREME COURT

Schechter Poultry (continued)

The Court unanimously struck down the law contending that, among other
things, it had unconstitutionally delegated legislative power to the president.
This case struck down the NIRA, saving the administration from a failure and
making room for more promising New Deal measures such as the National
Labor Relations Act.
Powell v. Alabama (1932)
Nine black young men were arrested and charged with the rape of a white
woman in Scottsboro, Alabama. On the day of the trial the boy’s counsel
refused to defend him, and the court had to scramble to find an appropriate
attorney who had no time to prepare. The young man was convicted and sen-
tenced to death. Upon the appeal through the Court, the justices reversed the
verdict holding that the state could not ignore the basic right of an individual
to adequate, prepared council.
Hammer v. Dagenhart (1918)
In 1916 Congress passed legislation to bar interstate transportation of goods
made at a factory where children under the age of 14 years worked. Roland
H. Dagenhart filed this suit on his own behalf and for his two minor sons who
were employed in a cotton mill. After a district court declared the statute
unconstitutional, the U.S. Attorney brought an appeal to the Supreme Court.
The Court disagreed with Congress’ right, under the commerce clause, to
restrict interstate transportation of goods. The justices argued the child labor
statute violated powers reserved to the states under the Tenth Amendment.
OTHER IMPORTANT DECISIONS OF THE SUPREME COURT

Pollock v. Farmers' Loan and Trust Company (1895)

This case reviewed a 1894 law enacted by Congress that allowed the taxa-
tion of interest and dividends on the deposits at U.S. banks. In heated argu-
ments the Court reached a decision that a tax on income from the state was
in essence a tax on the state itself, and violated the idea of state sovereignty.
This case established a precedent that was negated by the Sixteenth Amend-
ment, and was close to being reconsidered by the Court. However, the deci-
sion is a key example of judicial adherence to laissez-faire constitutionalism.
Slaughterhouse Cases (1873)
The Slaughterhouse Cases consisted of three separate suits. Louisiana
passed laws designed to restrict the slaughtering of animals in New Orleans
to the Crescent City Live-Stock Landing and Slaughtering Company. Since
the government chose some of its wealthier citizens to incorporate the com-
pany, many citizens were outraged. These laws inconvenienced butchers
who now were forced to take their business outside of the city or pay high
fees. The case went through the Louisiana Supreme Court and the butchers
appealed to the U.S. Supreme Court.
The Court was divided on the issue but the majority ruled that the Fourteenth
Amendment did not protect such fundamental rights such as the right to labor.

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 OTHER IMPORTANT DECISIONS
OF THE SUPREME COURT

Slaughterhouse (continued)
These Civil War amendments were designed to secure the freedom of black
Americans, not to add rights to whites.
Gibbons v. Ogden (1824)
In 1808, Robert Fulton and William Livingston acquired the sole right to oper-
ate steamboats on the state’s waters. Aaron Ogden held a Fulton-Livingston
license to operate under this monopoly. Thomas Gibbons held a license grant-
ed under a 1793 Act of Congress that competed with Ogden’s. Ogden filed a
complaint. The Court of Chancery of New York issued an injunction against
Gibbons, who appealed his case to the U.S. Supreme Court.
The justices reached a unanimous decision and overturned the decisions of
the New York court, citing the constitutional power of Congress, not the
states, to regulate interstate commerce.
Dartmouth College v. Woodward (1819)
In 1816, the New Hampshire legislature attempted to change Dartmouth
College—a privately funded institution—into a state university. The legislature
changed the school's corporate charter by transferring the control of trustee
appointments to the governor. In an attempt to regain authority over the
resources of Dartmouth College, the old trustees filed suit against William H.
Woodward, who sided with the new appointees.
These actions questioned whether the New Hampshire legislature unconstitu-
tionally interfered with Dartmouth College's rights under the Contract Clause.
The Court held that the College's corporate charter qualified as a contract
between private parties, with which the legislature could not interfere. The fact
that the government had commissioned the charter did not transform the
school into a civil institution. Chief Justice Marshall's opinion emphasized that
the term “contract” referred to transactions involving individual property rights,
not to “the political relations between the government and its citizens.”

McCulloch v. Maryland (1819)

Congress in 1816 chartered the Second Bank of the United States. In 1818,
the state of Maryland passed legislation to impose taxes on the bank. James
W. McCulloch, the cashier of the Baltimore branch of the bank, refused to
pay the tax. These actions posed two questions: Did Congress have the
authority to establish the bank? Did the Maryland law unconsitutionally inter-
fere with congressional powers?
In a unanimous decision for the Court, Chief Justice John Marshall explained
that Congress had the power to incorporate the bank and that Maryland could
not tax instruments of the national government employed in the discharge of
constitutional powers. Marshall noted that Congress possessed unenumerat-
ed powers not explicitly outlined in the Constitution. He also held that while
the states retained the power of taxation, “the constitution and the laws made
in pursuance thereof are supreme . . . they control the constitution and laws
of the respective states, and cannot be controlled by them.”
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 APPLICABLE PORTIONS
OF THE CONSTITUTION

Lectures 1 and 2
Article Ill, Section 1
The judicial power of the United States, shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from time to time
ordain and establish. The judges, both of the Supreme and inferior courts,
shall hold their offices during good behavior, and shall, at stated times,
receive for their services, a compensation, which shall not be diminished
during their continuance in office.
Section 2
1. The judicial power shall extend to all cases, in law and equity, arising under
this Constitution, the laws of the United States, and treaties made, or which
shall be made, under their authority; to all cases affecting ambassadors,
other public ministers and consuls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the United States shall be a party; to
controversies between two or more states, between a state and citizens of
another state, between citizens of different states, between citizens of the
same state claiming lands under grants of different states, and between a
state, or the citizens thereof, and foreign states, citizens, or subjects.
2. In all cases affecting ambassadors, other public ministers and consuls, and
those in which a state shall be a party, the supreme court shall have origi-
nal jurisdiction. In all the other cases before mentioned, the supreme court
shall have appellate jurisdiction, both as to law and fact, with such excep-
tions, and under such regulations as the congress shall make.
3. The trial of all crimes, except in cases of impeachment, shall be by jury;
and such trial shall be held in the state where the said crimes shall have
been committed; but when not committed within any state, the trial shall be
at such place or places as the congress may by law have directed.
APPLICABLE PORTIONS OF THE CONSTITUTION

Section 3
Treason against the United States, shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort. No per-
son shall be convicted of treason unless on the testimony of two witnesses
to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but
no attainder of treason shall work corruption of blood, or forfeiture except
during the life of the person attainted.
Lecture 2
Article VI
All debts contracted and engagements entered into, before the adoption of
this Constitution, shall be as valid against the United States under this
Constitution, as under the Confederation.
This Constitution, and the laws of the United States which shall be made in

96
 APPLICABLE PORTIONS
OF THE CONSTITUTION

pursuance thereof; and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, any thing in the
Constitution or laws of any state to the contrary notwithstanding.
The Senators and Representatives before mentioned, and the members of
the several state legislatures, and all executive and judicial officers, both of
the United States and of the several States, shall be bound by oath or affir-
mation, to support this Constitution; but no religious test shall ever be
required as a qualification to any office or public trust under the United
States.
Lecture 4
Amendment 5
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.
Amendment 13, Section 1
Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.
Section 2
Congress shall have power to enforce this article by appropriate legislation.
Amendment 14, Section 1
All persons born or naturalized in the United States and subject to the juris-
diction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
Section 2
Representatives shall be apportioned among the several States according
to their respective numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right to vote at any election
for the choice of electors for President and Vice President of the United
States, Representatives in Congress, the Executive and Judicial officers of a
State, or the members of the Legislature thereof, is denied to any of the
male inhabitants of such State, being twenty-one years of age, and citizens
of the United States, or in any way abridged, except for participation in
97
 APPLICABLE PORTIONS
OF THE CONSTITUTION

rebellion, or other crime, the basis of representation therein shall be reduced

in the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.
Section 3
No person shall be a Senator or Representative in Congress, or elector of
President and Vice President, or hold any office, civil or military, under the
United States, or under any State, who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, or as a
member of any State legislature, or as an executive or judicial officer of any
State, to support the Constitution of the United States, shall have engaged
in insurrection or rebellion against the same, or given aid or comfort to the
enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.
Section 4
The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be questioned. But neither
the United States nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all such debts, obliga-
tions and claims shall be held illegal and void.
Section 5
The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
Amendment 15, Section 1
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color or
APPLICABLE PORTIONS OF THE CONSTITUTION

previous condition of servitude.

Section 2
The Congress shall have power to enforce this article by
appropriate legislation.
Lecture 7
Amendment 1
Congress shall make no law respecting an establishment of religion, or pro-
hibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition
the government for a redress of grievances.
Lecture 11
Amendment 9
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.

98
 SUPREME COURT TRIVIA

• The first session of the Supreme Court was held on February 2, 1790, in
the Royal Exchange Building in New York City.
• The first session at the new Supreme Court building in Washington, DC,
was on October 7, 1935. There were no cases argued during that session.
• The first Supreme Court bar member was Elias Boudinot, sworn in on
February 5, 1865.
• The first black Supreme Court bar member was John S. Rock, admitted on
February 5, 1865.
• The first deaf attorney to argue a case before the Court was Michael A.
Chatoff, who argued Board of Education v. Rowley on March 23, 1982.
• The longest living justice was Stanley F. Reed, who lived to be 95 years
old. He retired on February 25, 1957.
• George Washington appointed the most justices to the Court: 11. President
Franklin D. Roosevelt appointed 9.
• Chief Justice Roger B. Taney swore in the most presidents (7), but Chief
Justice John Marshall administered the oath of office the most times (9
times to 5 presidents).
• Harlan F. Stone was the only justice to sit in every chair on the bench. He
progressed from most junior to most senior associate justice before he was
appointed chief justice.
• Oliver W. Holmes, at the age of 90, was the oldest justice ever to sit on the
Supreme Court.
• John Rutledge served the shortest term on the Court: 1 year as an associ-
ate justice and 4 months as chief justice.
• William H. Taft was the only justice who also served as president of the
United States.
• The most justices have come from New York (13) and Ohio (9).
• Samuel Chase was the only justice to be impeached. He was not convicted.
• Salmon P. Chase is the only justice whose likeness ever appeared on U.S.
Currency. He was on the $10,000 bill, which is no longer printed.
• The first president-elect and vice president-elect to visit the Court were
Ronald Reagan and George H.W. Bush on November 11, 1980.
• The first woman justice to issue the oath of office in a presidential inaugura-
tion was Justice Sandra Day O’Connor, who issued the oath of office to
Vice President-elect Danforth Quayle on Friday, January 20, 1989.
(Data courtesy of the research files of the Curator’s Office, Supreme Court of the United States)

99
 JUSTICES APPOINTED BY PRESIDENT

GEORGE WASHINGTON MARTIN VAN BUREN GROVER CLEVELAND

John Jay (Chief Justice) John McKinley (First Term)

John Rutledge Peter V. Daniel Lucius Q.C. Lamar

William Cushing Melville W. Fuller

JOHN TYLER (Chief Justice)
(Chief Justice)
Samuel Nelson
Robert Harrison BENJAMIN HARRISON
James Wilson JAMES K. POLK David J. Brewer
John Blair, Jr. Robert C. Grier Henry B. Brown
James Iredell George Shiras
MILLARD FILLMORE
Thomas Johnson Howell E. Jackson
Benjamin R. Curtis
William Paterson
FRANKLIN PIERCE GROVER CLEVELAND
Samuel Chase (Second Term)
Oliver Ellsworth John A. Campbell
Edward D. White
JOHN ADAMS JAMES BUCHANAN Rufus W. Peckham
Bushrod Washington Nathan Clifford
WILLIAM MCKINLEY
Alfred Moore ABRAHAM LINCOLN Joseph McKenna
John Marshall Noah H. Swayne
(Chief Justice) THEODORE ROOSEVELT
Samuel F. Miller
Oliver Wendell Holmes, Jr.
THOMAS JEFFERSON Stephen J. Field
William R. Day
William Johnson Salmon P. Chase
(Chief Justice) William H. Moody
Brockholst Livingston
Thomas Todd ULYSSES S. GRANT WILLIAM H. TAFT
Wiliam Strong Horace H. Lurton
JAMES MADISON
Joseph P. Bradley Charles E. Hughes
Joseph Story
Ward Hunt Edward D. White
Gabriel Duvall (Chief Justice)
Morrison R. Waite
JAMES MONROE (Chief Justice) Willis Van Devanter
JUSTICES APPOINTED BY PRESIDENT

Smith Thompson Joseph R. Lamar

RUTHERFORD B. HAYES
Mahlon Pitney
JOHN QUNICY ADAMS John Marshall Harlan
Robert Trimble William B. Woods
WOODROW WILSON
James C. McReynolds
ANDREW JACKSON JAMES GARFIELD
Louis D. Brandeis
John McLean Stanley Matthews
John H. Clarke
Henry Baldwin
CHESTER A. ARTHUR
James M. Wayne
Samuel Blatchford
Roger B. Taney
(Chief Justice)
Philip P. Barbour
John Catron

100
 JUSTICES APPOINTED BY PRESIDENT

WARREN G. HARDING JOHN F. KENNEDY

William H. Taft Byron R. White
(Chief Justice) Arthur J. Goldberg
George Sutherland
LYNDON B. JOHNSON
Pierce Butler
Abe Fortas
Edward T. Sanford
Thurgood Marshall
CALVIN COOLIDGE
RICHARD M. NIXON
Harlan F. Stone
Warren E. Burger
HERBERT HOOVER (Chief Justice)
Charles E. Hughes Harry A. Blackmun
(Chief Justice) Lewis F. Powell, Jr.
Owen J. Roberts William Rehnquist
Benjamin N. Cardozo (Chief Justice)

FRANKLIN D. ROOSEVELT GERALD FORD

Hugo L. Black John Paul Stevens
Stanley F. Reed
RONALD REAGAN
Felix Frankfurter
Sandra Day O’Connor
William O. Douglas
William H. Rehnquist
Frank Murphy (Chief Justice)
Harlan F. Stone Antonin Scalia
(Chief Justice)
Anthony M. Kennedy
James F. Byrnes
Robert H. Jackson George H.W. Bush
Wiley B. Rutledge David H. Souter
Clarence Thomas
HARRY S. TRUMAN
Harold H. Burton WILLIAM J. CLINTON
Fred M. Vinson Ruth B. Ginsburg
(Chief Justice) Stephen G. Breyer
Tom C. Clark
GEORGE W. BUSH
Sherman Minton
John G. Roberts, Jr.
DWIGHT D. EISENHOWER (Chief Justice)

Earl Warren Samuel A. Alito

(Chief Justice)
John M. Harlan II
William J. Brennan, Jr.
Charles E. Whittaker
Potter Stewart

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 GLOSSARY OF TERMS

Amicus Curiae, literally “friend of the court,” is a designation given to an indi-

vidual or an organization, other than the party’s counsel, who files a legal
brief with the Court in support of the party.

Appeal is the process of having a lower court proceeding reviewed by a

superior court such as the U.S. Supreme Court.

Bill of Rights is commonly viewed as the first ten amendments to the

Constitution of the United States.

Certiorari, Writ of, is the primary means by which a case comes before the
Supreme Court. Litigants must petition the Court for a writ to bring their case
for review.

Concurring Opinions are written by justices who agree with the outcome of
the decision but not with the logic.

Conference, The is a private meeting of the justices to deliberate cases current-

ly on the docket. Not even their own law clerks are invited.
Dissent is the disagreement written by those justices who oppose the posi-
tion taken by the majority.
Error, Writ of, is a common law writ from an appellate to an inferior court
asking for a copy of the record of a case for review.

Ex Parte is a Latin term meaning “on behalf of.”

Judicial Review is a distinctive power associated with the Supreme Court

and not provided by the Constitution. The Court has the right to review acts
of the other branches of government, both state and federal.

Laissez-Faire Constitutionalism refers to an attitude that was displayed

by justices between the Civil War and the New Deal. It encompasses a
preference for individual liberties and private market politics instead of
government regulation.

Mandamus, Writ of, is an order by a court to either an individual or company

requiring the performance of a duty prescribed by law.

Precedent is the idea that the judges should look to past decisions for guid-
ance in answering current questions of law.
GLOSSARY OF TERMS

Subpoena is Latin for “under penalty” and is an order of a court for a person
either to appear in court or provide requested information.

Writ means a formal written order of a court commanding someone to

do something.

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