A People's History of the Supreme Court

by Peter Irons

  The cases dealing with racial segregation after World War II have generated many fine books. Clement Vose started filling this shelf with Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (1959). Richard Kluger produced a masterful study of the school segregation cases, both detailed and exciting, in Simple Justice: The History of Brown v. Board of Education (1976). Jack Greenberg, who succeeded Thurgood Marshall as the NAACP’s legal director, offered an excellent insider’s account of dozens of civil rights cases in Crusaders in the Courts (1994). Mark Tushnet, a prolific writer on constitutional history, adds background to these cases in The NAACP’s Legal Strategy Against Segregated Education, 1925-1950 (1987).

  Other good case studies include Michal Belknap’s book on the Communist Party cases, Cold War Political Justice (1977), and two books by Anthony Lewis: Gideon’s Trumpet (1964), on the right to counsel, and his study of an important libel case in Make No Law: The Sullivan Case and the First Amendment (1991). Robert S. Alley explored the school prayer cases in Without a Prayer: Religious Expression in Public Schools (1996). Joel Dreyfuss and Charles Lawrence III dealt with affirmative action in The Bakke Case: The Politics of Inequality (1979).

  There are several excellent books on the abortion controversy and cases. The most detailed and important is David J. Garrow’s Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994). Barbara H. Craig and David M. O’Brien present much useful data in Abortion and American Politics (1993). Sarah Weddington, who argued the Roe case before the Supreme Court, offers her account in A Question of Choice (1992); and Norma McCorvey, the real “Jane Roe,” told her story in I Am Roe (1994), written before her “born-again” conversion to the pro-life position.

  In addition to individual case studies, there are two books that recount the stories of several important cases. John Garraty edited a book with accounts of Supreme Court cases over two centuries in Quarrels That Have Shaped the Constitution (1964; expanded edition in 1987). I recorded the first-person stories of Supreme Court litigants between 1940 and 1986 in The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court (1988).

  Philip B. Kurland and Gerhard Casper continue to edit another important source on significant Supreme Court cases, Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law. This series includes all the briefs and oral arguments (since 1955) in more than two hundred cases. I have produced (with Stephanie Guitton) three compilations of edited and narrated oral arguments in a series entitled May It Please the Court. The first set (in 1993) included arguments in twenty-three cases, including Bakke, Miranda, Roe, and the Pentagon Papers and Watergate tapes cases. The second set, Arguments on Abortion (1997), included arguments in eight cases dealing with contraception and abortion, from Griswold in 1965 to Casey in 1992. The third set, The First Amendment (1998), included arguments in cases that dealt with libel, obscenity, nude dancing, picketing, and other issues of free expression.

  Judicial biography offers another perspective on the Constitution and Supreme Court. I have relied heavily on two sources in this book. Melvin I. Urofsky edited a collection of short (2- to 10-page) biographies of all Supreme Court justices from John Jay to Ruth Ginsburg in The Supreme Court Justices: A Biographical Dictionary (1994). I contributed a sketch of Justice Frank Murphy to this book. Appended to each essay are references for further reading. Henry J. Abraham recounts the details of each Supreme Court nomination in Justices and Presidents: A Political History of Appointments to the Supreme Court (1974; 2d ed., 1985). Abraham writes in a chatty style and offers his judgment on most justices. Leon Friedman and Fred L. Israel have edited a five-volume set of longer biographies in The Justices of the United States Supreme Court, 1789-1978 (1969-1980).

  The following list includes biographies of the Court’s most important justices; Urofsky’s collection offers material on those I have slighted here. There are more than twenty books about Chief Justice John Marshall. Albert J. Beveridge produced a monumental four-volume biography, The Life of John Marshall (1916-1919). Leonard Baker offered a shorter, more recent account in John Marshall: A Life in Law (1974). R. Kent Newmyer wrote of Marshall’s devoted colleague in Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985). Carl B. Swisher provided a largely admiring biography of Marshall’s successor in Roger B. Taney (1935); Lewis Walker offered another, but still admiring view in Without Fear or Favor: A Biography of Chief Justice Roger Brooke Taney (1965). No biographer has yet revealed the hard core of Taney’s racism.

  Frederick J. Blue chronicled the career of Taney’s successor in Salmon P. Chase: A Life in Politics (1987). Carl B. Swisher produced another admiring biography in Stephen J. Field: Craftsman of the Law (1930), and Charles Fairman had few criticisms of his subject in Mr. Justice Miller and the Supreme Court (1939). C. Peter Magrath did a fine job in Morrison Waite: The Triumph of Character (1963), but Willard L. King offered little analysis in Melville Weston Fuller: Chief Justice of the United States, 1888-1910 (1950). Robert B. Highsaw took account of political factors in Edward Douglass White: Defender of the Conservative Faith (1981). Loren Beth wrote a good biography in John Marshall Harlan: The Last Whig Justice (1992). Oliver Wendell Holmes has attracted several biographers; the most recent and most perceptive is Sheldon Novick in Honorable Justice (1989).

  There are two good biographies of Justice Brandeis. Alpheus T. Mason wrote an early study in Brandeis: A Free Man’s Life (1946); and Philippa Strum followed with Brandeis: Justice for the People (1984). A. L. Todd provided an account of Brandeis’s confirmation battle in Justice on Trial: The Case of Louis D. Brandeis (1964). Alpheus T. Mason offered a large biography of his large subject in William Howard Taft: Chief Justice (1964). Mason had earlier written an excellent portrait in Harlan Fiske Stone: Pillar of the Law (1956), which made good use of Stone’s papers. Richard Polenberg wrote an incisive biography of a reclusive justice in The World of Benjamin Cardozo (1997).

  The justices named by Franklin Roosevelt have attracted numerous biographers. Gerald T. Dunne was largely uncritical in Hugo Black and the Judicial Revolution (1977). Felix Frankfurter has eluded a full-scale biography. Harry N. Hirsch portrayed him as an insecure judicial bully in The Enigma of Felix Frankfurter (1981), and Melvin I. Urofsky matched praise and criticism in Felix Frankfurter: Judicial Restraint and Individual Liberties (1992). James Simon tried without much success to explain his subject’s personal and judicial wanderings in Independent Journey: The Life of William O. Douglas (1980). Bruce Allen Murphy is completing another biography of Douglas. Sidney Fine did an outstanding job in Frank Murphy: The Washington Years (1984).

  G. Edward White stuck closely to the public record in Earl Warren: A Public Life (1982); in fairness, Warren’s private life was fairly boring. Tinsley E. Yarbrough did an excellent job in John Marshall Harlan: Great Dissenter of the Warren Court (1992), although the second Justice Harlan hardly matched his grandfather (or Justice Holmes) as a dissenter. The only available biography of Justice William Brennan, Kim Isaac Eisler’s A Justice for All: William J. Brennan, Jr., and the Decisions That Transformed America (1992), is thin and bland. Stephen Wermeil, who covered the Supreme Court for The Wall Street Journal, is completing an authorized biography that draws on Brennan’s papers and many interviews. Abe Fortas has attracted two competent biographers. Bruce Allen Murphy focused on scandal in Fortas: The Rise and Fall of a Supreme Court Justice (1988); Laura Kalman looked more closely at her subject’s legal and judicial career in Fortas: A Biography (1990). Thurgood Marshall, whose papers became available on his death in 1993, has not yet attracted a competent biographer. Marshall’s close friend, Carl T. Rowan, offered no broad perspective in Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall (1993).

  Chief Justice Warren Burger, who detested reporters and distrusted scholars, has not yet attracted a full-s
cale biographer. Philippa Strum is working on a biography of Justice Harry Blackmun, and John C. Jeffries, Jr., a former law clerk, has produced a solid biography of his boss in Justice Lewis F. Powell, Jr. (1994). Chief Justice William H. Rehnquist still occupies the Court’s center seat, and his judicial career has not yet concluded. I offered a comparison of two very different justices in Brennan vs. Rehnquist: The Battle for the Constitution (1994), based largely on their published opinions.

  Let me emphasize once more that this is a highly selective compilation of books about the Constitution and the Supreme Court. The fact that libraries contain hundreds more worth reading attests to the importance of this document and this institution to our society.

  INDEX

  The following index terms appeared in the printed version of this book. To find the corresponding locations in the text of this digital version, please use the “search” function on your e-reader. Note that not all terms may be searchable.

  Aaron, John

  Abington Township v. Schempp

  abortion; partial-birth

  Abrams, Jacob

  Abrams v. United States

  Acheson, Dean

  Adair v. United States

  Adams, Pres. John

  Adams, Pres. John Quincy

  Adams, Lionel

  Adams, Sam

  Adkins v. Children’s Hospital

  affirmative action

  African Americans: citizenshipfree blacks; rightssocial equality of; voting

  Agricultural Adjustment Act

  agriculture

  Alien Act (1798)

  Alien Land Law

  Alien Registration Act (1940)

  Alito, Justice Samuel

  Allgeyer v. Louisiana

  al Qaeda

  Amalgamated Clothing Workers Union

  Amendment 2, Colorado’s

  American Center for Law and Justice (ACLJ)

  American Citizens’ Equal Rights Association

  American Civil Liberties Union (ACLU)

  American Colonization Society

  American Independent Party

  American Insurance Co. v. Canter

  American Medical Association

  American Newspaper Guild

  American Party

  American Protective League

  American Railroad Union

  American Sugar Refining Company

  Amistad case

  anarchists

  Antelope case, The

  Antifederalists

  apportionment of districts

  arms, right to bear

  Arthur, Pres. Chester A.

  Article III

  Article VI

  Articles of Confederation

  Ashcroft, John

  Ashurst, Sen. Henry

  assembly, freedom of

  Associated Press

  association, right of

  Authorization for Use of Military Force

  Baer, Elizabeth

  Baker v. Carr

  Bakke, Allan

  Baldwin, Abraham

  Baldwin, Justice Henry

  Baldwin, Roger

  Baltimore, Lord

  Baltimore, Md.

  Bank of the United States

  bankruptcy

  Banning, Sandra

  Barbour, Justice Philip

  Barnett, Gov. Ross

  Barnette, Walter

  Barron, John

  Barron v. Baltimore

  Bassett, William

  Bastian, Judge Walter

  Bates, Daisy

  Beard, Charles

  Bendetsen, Col. Karl

  Benjamin, Sen. Judah

  Besig, Ernest

  Biddle, Francis

  Bilbo, Sen. Theodore

  Bill of Rightsapplied to the statesdemand for ratificationtest cases

  Bingham, Rep. John A.

  Black, Justice Hugo

  Black, Judge Lloyd

  Blackmun, Justice Harry

  Blackstone, Sir William

  Blair, John, Jr.

  Blair, Montgomery

  Blaisdell, John H.

  Blatchford, Justice Samuel

  Blount, William

  Board of Education of Westside Schools v. Mergens

  Bolling v. Sharpe

  Bolsheviks

  Booth, John Wilkes

  Borah, Sen. William

  Bork, Robert

  Borquin, Judge George

  Boston, Mass.

  Boudinot, Rep. Elias

  Boulware, Harold

  Bowers, Michael

  Bowers v. Hardwick

  boycotts

  Bradford, Gov. William

  Bradley, Justice Joseph

  Brandeis, Justice Louis

  Brandenburg v. Ohio

  Brant, Irving

  Breckinridge, John

  Brennan, Justice William

  Brewer, Justice David

  Breyer, Justice Stephen

  Briggs, Harry, Sr.

  Briggs v. Elliott

  Brown, Justice Henry B.

  Brown, John

  Brown, Linda

  Brown, Oliver

  Brown v. Board of Education

  Bryan, Justice Albert

  Bryan, William Jennings

  Buchanan, Patrick

  Buchanan, Pres. James

  Buck, Carrie

  Buck v. Bell

  Budenz, Louis

  Burdell, Charles

  Burger, Chief Justice Warren

  Burke, Aedanus

  Burns, Anthony

  Burr, Aaron

  Burton, Justice Harold

  Bush, Pres. George H. W.

  Bush, Pres. George W.

  Bush v. Gore

  Butler, Justice Pierce

  Butler, Richard

  Buxton, Dr. Thomas

  Byrd, Sen. Harry

  Byrnes, Justice James

  Calhoun, Sen. John

  Calvin, John

  Campbell, Justice John

  Campbell, Marcus

  Cantwell v. Connecticut

  capital punishment

  Cardozo, Justice Benjamin

  Carhart, Dr. Leroy

  Carnegie, Andrew

  Carswell, Judge G. Harrold

  Carter, Robert

  Carter v. Carter Coal Co.

  Casey, Gov. Robert

  Catholics

  Catron, Justice John

  Center for Reproductive Rights

  Chafee, Zechariah

  Charles River Bridge v. Warren Bridge

  Chase, Chief Justice Salmon Portland

  Chase, Justice Samuel

  Cheever, George

  Chein, Isador

  Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota

  Children’s Hospital, Washington, D.C.

  Chinese Americans

  Chinese Exclusion Act

  Chisholm v. Georgia

  Choate, Joseph

  Cinque

  circuit-riding

  citizenship: of African Americansof immigrantsnationalstate

  City of Richmond v. J. A. Croson Co.

  civil rights

  Civil Rights Act (1866)

  Civil Rights Act (1875)

  Civil Rights Act (1964)

  Civil Rights Cases (1883)

  civil service reform

  Civil War

  Clark, Kenneth

  Clark, Justice Tom

  Clark, Judge William S.

  Clarke, Justice John H.

  Clay, Sen. Henry

  Clayton, Judge Henry D., Jr.

  clear
and present danger test

  Cleveland, Pres. Grover

  Clifford, Justice Nathan

  Clinton, Pres. Bill

  Clinton, Gov. George

  Coffee, Linda

  Cohen, Philip and Mendes

  Cohens v. Virginia

  Coke, Edward

  Cold War

  Colegrove case

  Colfax Massacre

  color-blind principle

  Colvin, Reynold

  commerce, regulation of

  Commerce Clause

  Communist International

  Communist Labor Party

  Communist Party

  Compromise of 1850

  Comstock, Anthony

  confessions

  Congress: Firstpowers of

  Connor, Sheriff “Bull”

  Constitution, U.S.: adaptability ofbicentennial character of the Framers modeled on foreign examples Philadelphia convention (1787) ratification ofsupremacy of

  contraception

  Contract Clause

  contractsliberty of

  Controlled Substance Act

  Cooley, Thomas M.

  Coolidge, Pres. Calvin

  Cooper v. Aaron

  Copperheads

  corporate charters

  corporations

  Corrigan v. Buckley

  coverture

  Cox, Archibald

  Crowninshield, Richard

  Cruel and Unusual Punishment Clause

  Cruikshank, Williamcase of

  Cruzan v. Missouri Department of Health

  Cummings, Homer

  Cumming v. Board of Education

  Curtis, Justice Benjamin

  Curtis, George

  Cushing, Justice William

  Dallas, Alexander

  D & X abortions

  Daniel, Justice Peter

  Dartmouth College case

  Davis, Justice David

  Davis, Jefferson

  Davis, John W.

  Davis v. Prince Edward County

  Day, Justice William R.

  Dayton, Jonathan

  Death With Dignity Act, Oregon’s

  Debs, Eugene

  debtors

  Declaration of Independence

  DeFunis, Marcocase of

  De Jonge, Dirk

  De Jonge v. Oregon