Law Commons^™

The Liberal Tradition Of The Supreme Court Clerkship: Its Rise, Fall, And Reincarnation?, William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo

Vanderbilt Law Review

This Article presents the first comprehensive empirical study of the post-clerkship employment of law clerks at the Supreme Court from 1882 to the present, and it uses that data to flesh out a historical and institutional interpretation of the clerkship and the recent political polarization of the Court more generally. The liberal tradition of the clerkship arose out of Louis Brandeis's vision of former law clerks serving a progressive legal agenda, a tradition that Felix Frankfurter helped institutionalize while striving to remove ideological bias. With the advent of a conservative bloc on the Court, this tradition has waned, due to …

William Johnson, The Dog That Did Not Bark?, Mark R. Killenbeck

Vanderbilt Law Review

The conventional wisdom is that Justice William Johnson, Jr., was the "the first dissenter." This is not literally true. The first published opinion of the Court was Georgia v. Brailsford, in which each member of the Court expressed his views seriatim. Ironically, the first to speak was the first Justice Johnson, Thomas of Maryland, whose reasoning helped create a 4-2 split that produced a number of Supreme Court firsts: the first published set of opinions, the first split decision, and the first dissent.

It was the "other" Justice Johnson, William of South Carolina, who earned the reputation as the first …

Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen

Vanderbilt Law Review

This Article argues that Justice Catron's acceptance of the general premises of the Court's Jacksonian jurisprudence accounts for his obscurity. Part One demonstrates that Catron articulated a similar framework while serving on the Tennessee Supreme Court. Part Two illustrates his continued support for that framework after he moved to the U.S. Supreme Court. Part Three, however, demonstrates that, although he embraced much of the Taney Court's jurisprudence, Catron did not move in lockstep with his colleagues. Indeed, the elements he emphasized within that framework-namely, support for state sovereignty and equality as well as an aversion to judicial policymaking-led him to …

John Mclean: Moderate Abolitionist And Supreme Court Politician, Paul Finkelman

Vanderbilt Law Review

His thirty-two years on the Supreme Court make him one of the twelve longest serving Justices in history. At the time of his death, he was the third longest serving Justice in the history of the Court, and he is sixth in length of service among all Justices who served before the twentieth century. He wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions. Yet he is about as obscure a Justice as there has ever been. Few Justices have worked so hard for such a long period of time, and yet had so little impact …

Sherman Minton: Restraint Against A Tide Of Activism, Linda C. Gugin

Vanderbilt Law Review

Sherman Minton was not a great U.S. Supreme Court Justice, but he was far better than the image that scholars have created for him would indicate. Although there are exceptions, scholars generally consider Minton to have been an ineffective Justice who was put on the bench only because he was a crony of President Harry Truman. Indeed, the scholars who periodically provide a list of the "greatest" and "worst" Justices inevitably relegate Minton to the "worst" category. For example, Bernard Schwartz, who classified Minton as one of the ten worst Justices, said Minton "was below mediocrity as a Justice. His …

Bushrod Washington, Herbert A. Johnson

Vanderbilt Law Review

In October 1822, President Thomas Jefferson urged Justice William Johnson to take the lead in reinstituting the Jay-Ellsworth Court's practice of issuing seriatim opinions. He extolled the English preference for documenting each judge's reasoning on the issues before the Court and deplored its recent abandonment under the influence of Lord Mansfield. Justifying his own silent acquiescence in opinions of the Marshall Court, Johnson pointed to the situation when he joined the U.S. Supreme Court in 1804. He recalled that "Cushing was incompetent. Chase could not be got to think or write-Patterson [sic] was a slow man and willingly declined the …

There Were Great Men Before Agamemnon, William R. Casto

Vanderbilt Law Review

John Marshall is the Agamemnon of Supreme Court history. He is universally considered the Court's greatest Justice, and rightly so. But there were great Justices before Marshall. One of those great Justices was James Iredell. No Justice in the Court's history has provided a more detailed or sophisticated explanation and justification of the doctrine of judicial review. Iredell needs a bard, and this Essay is my ode to his memory.

Rufus W. Peckham And Economic Liberty, James W. Ely, Jr.

Vanderbilt Law Review

It is striking that Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author of Lochner v. New York (1905), one of the most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, antitrust law, eminent domain, dormant commerce power, and the Eleventh Amendment. Indeed, Owen M. Fiss maintains that Peckham and David J. Brewer were intellectual leaders of the Fuller Court, "influential within the dominant coalition and the source of the ideas that gave the Court its sweep …

The Perils Of Popularity: David Josiah Brewer And The Politics Of Judicial Reputation, J. Gordon Hylton

Vanderbilt Law Review

David Brewer is hardly a household name in the contemporary legal academy. Most American professors of constitutional law would have a hard time placing his nearly twenty-one years of service on the U.S. Supreme Court, though most would be savvy enough to guess "Lochner era." He is probably the least well-known of all the Justices whose careers are examined in this Symposium. (Brewer's longtime colleague Rufus Peckham is probably his chief contender for this title.) For the record, Brewer sat on the Supreme Court from January of 1890 until his death in March of 1910.

In his own era, Brewer …