Severability, Inseverability, and the Rule of Law

INTRODUCTION Litigating takings claims under the U.S. Constitution involves pitfalls not encountered in ordinary constitutional litigation. With respect to takings claims against the federal government, just compensation can ordinarily be awarded only by the Court of Federal Claims (CFC), an court located in Washington, D.C. (1) The CFC, however, has no authority to grant equitable or declaratory relief. (2) Consequently, claimants who wish to advance claims enforced by injunctions or declaratory judgments (for example, that the government action was arbitrary and capricious) must seek relief in an Article III court. This means claimants must often split their claims between two courts, giving rise to tricky questions of timing and preclusion. If they file in the wrong court, or get the sequencing wrong, consideration of the takings claim may be foreclosed. (3) Congress could clean up the mess by rewriting the relevant jurisdictional statutes, but has failed to act. (4) With respect to federal takings claims against state and local governments, the Supreme Court has held that such claims must be initially presented to state courts before they can be heard in federal court. (5) Any legal and factual issues that are resolved by the state courts, however, cannot be relitigated in a subsequent challenge in federal court. (6) Since federal and state takings clauses are generally interpreted the same way, this gives rise to what has been aptly called a trap. (7) Although federal constitutional claims ordinarily can be tried in federal court under 42 U.S.C. [section] 1983, (8) takings claims, because they must be initially presented to state courts, are generally barred from being considered by any federal court other than the U.S. Supreme Court on certiorari from the final state court decision, which is rarely granted. This Essay argues that these pitfalls of litigating federal takings claims rest, in significant part, on an erroneous understanding about the scope of federal judicial authority under the Takings Clause. Starting from the premises that the Constitution does not prohibit takings but only requires that they be compensated, (9) and that compensation can be awarded only in a court in which the government has waived its sovereign immunity, (10) the Supreme Court has concluded--sometimes--that federal courts of general jurisdiction have no authority to consider takings claims as long as an action for compensation is available elsewhere. On other occasions however--and usually without acknowledging the inconsistency--the Court has reviewed takings claims without requiring that they first be submitted to the court having authority to award just compensation. The latter line of authority, although poorly theorized by the Court, is the correct one. There is no rule of law that prevents federal courts of general jurisdiction from adjudicating claims that arise under the Takings Clause --as long as they confine themselves to the question whether there has been a taking that entitles the owner to compensation. Given sovereign immunity, however, any actual award of compensation against the federal government or one of the states (as opposed to a local government) must be made by a court having jurisdiction to render such a judgment. The vehicle for allowing federal courts to consider takings claims, even if they have no authority to award just compensation, is what I call an anticipatory remedy. (11) The primary type of remedy I have in mind is a declaratory judgment, authorized by the Declaratory Judgment Act of 1934. (12) In appropriate circumstances, federal courts of general jurisdiction should be able to entertain claims that a federal or state government unit is proposing to engage in action that would constitute a taking, and if so, to issue a declaration that compensation would be required if the government persists. Anticipatory remedies could also take other forms besides declaratory judgments. …

Restraining Multiple Bites at the Class Certification Apple: May a Federal Court Enjoin a State Court from Relitigating a Class Certification Denial?

for “Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect” This article conducts an in-depth examination of Supreme Court Justices’ reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates. First, the article presents a powerful case against the conventional wisdom that legislative history is a “politicized” resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions—if true—should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in “minor” cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The article’s second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices’ use of legislative history since 1986. In the face of Justice Scalia’s fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals’ strategic restraint is to make their use of legislative history in remaining (mostly proemployee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia’s strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for <i>Chevron</i> Deference”

Policy Points Since its founding, the Supreme Court has played a major role in defining the parameters of governments' public health powers and the scope of individual health-related rights. Although conservative courts have been less favorable to public health objectives, federal courts have, for the most part, advanced public health interests through consensus and adherence to the rule of law. In establishing the current six-three conservative supermajority, the Trump administration and the Senate shifted the Supreme Court dramatically. A majority of Justices, led by Chief Justice Roberts, did shift the Court in a decidedly conservative direction. It did so incrementally, guided by the Chief's intuition that the Institution itself should be preserved, mindful of maintaining public trust and appearing outside the political fray. That has all changed because Roberts' voice no longer holds sway. Five members of the Court have displayed a willingness to overturn even long-held precedent and dismantle public health policy in favor of the Justices' core ideological tenants-notably the extensive reach of the First and Second Amendments and a parsimonious view of executive and administrative action. Public health is vulnerable to judicial rulings in this new conservative era. This includes classic public health powers in infectious disease control as well as reproductive rights; lesbian, gay, bisexual, trans, queer or questioning, and others (LGBTQ+) rights; firearm safety; immigration; and climate change. Congress has the power to curb the most extreme actions of the Court while still adhering to the vital ideal of a nonpolitical branch. That does not require Congress itself to overreach (such as by "packing" the Supreme Court, as Franklin Delaeno Roosevelt once proposed). Congress could, however, 1) disempower lower federal judges from issuing injunctions that apply nationwide, 2) limit the Supreme Court's so-called shadow docket, 3) alter the way that presidents appoint federal judges, and 4) set reasonable term limits for federal judges and Supreme Court Justices.

If there is any area of government in which one would expect to locate the rule of law, it would be in the courts. And, if there is any group of people deserving the protections of the rule of law, it would be the accused unable to afford an attorney. In the United States of America, the Sixth Amendment to the Constitution provides a right to assistance of counsel, and both Supreme Court precedent and federal statute extend that right to indigent defendants in criminal cases while establishing that the representation provided is at least minimally effective. However, while these rights exist on paper, their protection has gone wanting in practice as the competing goals of federal judicial administration have starved indigent defense of sufficient funding and have failed to ensure that the attorneys and representation provided are adequate. Indeed, as federal judicial administration has become more ‘professionally’ focused – deferring to the administrative expertise of staff members and emphasizing cost-effective, results-oriented management – indigent criminal defendants have seen the adequacy of their representation fall, in turn threatening the rule of law. This paper tells that story by simultaneously explaining the growth of judicial administration at the federal level in the United States and showing how the federal courts’ increased focus on bureaucratic processes and staff expertise in cost containment have endangered the most vulnerable parties in the federal criminal cases. As such, the federal courts’ over-reliance on public administration theory and their failure to balance its implementation with other central goals threatens the rule of law in their very courtrooms. There is a way out of this morass, which a committee of the federal courts has even recommended: independence of the defense function from the courts’ administrative structures. Barring that change, a central constitutionally-protected right will remain at risk.

Although federal circuit and district court judges are placed within a federal hierarchy, and receive legal and judicial training that emphasizes the importance of the judicial framework and its structure, such judges are also subjected to other pressures such as the types of litigants within the courtrooms as well as their local political environment. Furthermore, such judges are apt to form their own views about politics and legal policy and are often appointed by presidents who approve of their ideological leanings. Thus, federal courts are caught between competing goals such as their willingness to maximize their preferred legal policy, and their place within the judicial hierarchy. This dissertation applies hierarchy and impact theory to assess the importance of the judicial framework and its socialization, by analyzing both the judicial opinions and votes of federal circuit and district court judges in obscenity cases during a four-decade period (1957-1998). The research presented here finds the influence of higher court precedent to correspond in part with the conception of a judicial hierarchy. An analysis of citations of Supreme Court precedent (Roth v. United States (1957) and Miller v. California (1973)) in lower court majority opinions suggests low levels of compliance: lower courts at the circuit and district court level do not signal to the Supreme Court their acceptance of High Court doctrine; thus, except for 'factual' cases, most circuit and district court decisions do not comply formally with higher court precedent. An analysis of judicial votes, however, suggests that a Supreme Court doctrinal shift (to Miller v. California) influences lower court decisions only at the circuit court level. Further investigation suggests that Supreme Court precedent has a greater influence in circuit courts than in district courts: not only is the magnitude greater for circuit (versus district) court decisions, such results occur when controlling for such factors as the appointing president, regional variations, various constitutional claims and types of litigants. Thus, it appears that the influence of Supreme Court doctrine is much stronger in the circuit courts (only one step removed from the Supreme Court) than in district courts yet the hierarchy is influential nonetheless.

Chief Justice Webster

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties. The Supreme Court, when it rendered its decision, seemed to be rectifying a bottleneck in Superfund remediation of hazardous waste. However, in the decade since this Supreme Court decision, several federal trial and circuit courts have circumvented the Supreme Court command. This article illustrates how the lower federal courts have done this without violating Article III of the Constitution, by re-defining a one-word term. The practical impact has been chaos in hazardous substance remediation across the U.S., affecting an estimated 600,000 contaminated waste sites. There are huge dollar impacts: addressing the 350,000 remaining contaminated sites in the U.S. would cost up to one-quarter trillion dollars, or an expenditure of $6-8 billion annually. This Article analyzes how the lower federal courts have circumvented the Supreme Court decisions, with particular focus on decisions and legal prestidigitation in the most recent four years. This lower court inversion of the law is without much basis in law, and resurrects exactly what the Supreme Court thought it had overruled unanimously. What transpired in enforcement in the lower courts is not what the Supreme Court’s opinion contemplated. This Article examines the method by which the lower federal courts have created an ongoing legal mechanism to circumvent the most important Supreme Court holding in a critical area of the economy.

The article examines the problem of the essence and content of judicial interpretation, its characteristic features. The goal of a casual court interpretation is the correct understanding of the content of the norms of law, and the task is to individualize legal regulations. Acts of casual court interpretation are «samples» for lower courts, given that they are always guided by the practice of interpretation. The article also deals with the theoretical aspects of the institute of interpretation of law by court, its gist, and legal nature; explores the views of the Ukrainian and foreign scientists on the subject. The article also deals with relevant to modern legal practice issues of judicial interpretation. The peculiarity of the casual interpretation is that it has a person-oriented character and is relevant to specific circumstances. A casual interpretation can not go beyond the boundaries of a particular legal case and apply to similar cases. The difference between the normative interpretation and the casual is that the former may extend to an unspecified range of cases, and the second one to the incident that was the subject of a dispute. Subjects of casual interpretation are the judicial and administrative bodies. Clarification of the content of the law by the judiciary is a judicial interpretation. The official constitutional interpretation of the Constitutional Court of Ukraine is carried out in providing opinions on cases of constitutionality of laws and other legal acts, compliance with the Constitution of Ukraine of international treaties, adherence to the procedure of investigation and consideration of the case of removal of the President of Ukraine from office in the order of impeachment. The supreme court’s interpretation of the case largely influences judicial practice. Courts, in court cases, carry out a casual interpretation of the rules of law and develop case-law on the application of the rules of law. The casual judicial interpretation is the interpretive activity of the court in the process of reviewing and resolving court cases (or in the order of their review by the appellate or cassation instances), the purpose of which is a correct understanding of the content of the legal norm. His task is the individualization of legal requirements, and the result is binding only for a specific court case and parties involved in it. The acts of the casual interpretation of the higher judicial bodies are «samples» for lower courts, given that they are always guided by the practice of interpretation and application of the law by the highest judicial authorities and, as a rule, follow it. Characteristic features of the casual judicial interpretation is that its subjects are judges of all courts, it is directed at the consideration and resolution of a particular court case, the results of such an interpretation are binding only for the parties to a specific court case and are fixed in the motive part of the decision. Keywords: court, casual interpretation, the rule of law, judicial interpretation, rule.

William Howard Taft and the Importance of Unanimity* SANDRA DAY O’CONNOR This Term, the Historical Society has put on a wonderful series about the man who is widely—and rightly—regarded as this Court’s greatest Chief Justice. Through his recognition ofthe right ofjudicial review, John Marshall secured for this Court a role in shaping the nation’s most important principles: racial equality, individual liberty, the meaning of democracy, and so many others. Learning more about John Marshall this Term has caused me to think about another great Chief Justice, who perhaps deserves al­ most as much credit as Marshall forthe Court’s modern-day role, but does not often receive the recognition: William Howard Taft. Taft, of course, was remarkable even before he became ChiefJustice—but even the presidency did not hold as much charm for Taft as did his eventual position on the Court. Mrs. Taft noted in her memoirs that “[NJever did he cease to regard a Supreme Court appointment as vastly more desirable than the Presidency.”1 Mrs. Taft, however, disagreed. She loved being First Lady, and was a good one, at that. She was responsible for bringing the cherry blossoms to Washington, a feat for which I am particularly grateful. She also made a bit of history on March 4,1909 by becoming the first First Lady to accompany her husband from the Capitol to the White House on Inauguration Day.2 She was a difficult woman to refuse. Taft, on the other hand, was an unpop­ ular President. His bid for re-election was so unsuccessful that he himself described his defeat as “not only a landslide but a tidal wave and holocaust all rolled into one general cataclysm.”3 Despite his failures as President, however, as chief executive of the Court Taft could only be considered a success. When he took over the job, he found a federal system overwhelmed with cases, causing the Supreme Court’s docket to be as much as five years be­ hind and placing the other federal courts in similarly dire straits.4 Taft, with his experi­ ence as an executive and his connections on Capitol Hill, succeeded in securing the ap­ pointment of twenty-four additional federal judges.5 He also founded the predecessor to the Judicial Conference of the United States, 158 JOURNAL OF SUPREME COURT HISTORY Helen Taft (pictured with her husband and son) be­ came the first First Lady to accompany her hus­ band from the Capitol to the White House on In­ auguration Day. She pre­ ferred being the wife of a President to being that of a Chief Justice. thejob ofwhich it became to keep statistics on the work of federal courts and to suggest re­ forms to keep the federal system functioning smoothly.6 Taft lessened the load on the Supreme Court by successfully lobbying Congress to pass a statute that would give the Court greater control over its own docket by substituting discretionary certiorari review for much of what had previously been mandatory appel­ late jurisdiction.7 But Taft’s concern for the Court went beyond simple efficiency: he had a vision of the Court much grander than that ofa court of error securing justice for individ­ ual litigants. As Taft saw it, individual litigants received all the justice they required through the federal district courts and courts of ap­ peals. The Supreme Court’s role was only “to maintain uniformity ofdecision forthe various courts ofappeal, [and] topass on constitutional and other important questions.”8 Control over its own docket allowed the Court to pass over ordinary lawsuits and spend more time on these sorts of questions. In keeping with his vision of the Court as a player in issues of national importance, Taft also lobbied Congress to appropriate funds to build the present Supreme Court Building, a building whose grandeur matched Taft’s sense of the significance of the business conducted therein.9 Chief Justices Taft and Marshall also placed great value on keeping the Courts over which they presided unanimous. John Marshall began his Chief Justiceship by putting to an end the English practice of seriatim opinions, THE IMPORTANCE OF UNANIMITY 159 Not only was Chief Jus...

Article 2 paragraph (2) Regulation of the Minister of Health Number 53 of 2017 concerning Amendments to the Regulation of the Minister of Health Number 40 of 2016 concerning Guidelines for the Use of Cigarette Taxes for Funding Public Health Services an application for judicial review rights has been submitted to the Supreme Court by OK Petitioners . The formulation of the problems in this thesis are 1) What is the authority of the Supreme Court in examining and deciding judicial cases of Ministerial Regulation 2) What are the considerations of the Panel of Supreme Court Justices in deciding to reject the application for judicial review rights in the Supreme Court Decision Number: 25. The research used is normative legal research with statutory, historical, and conceptual approaches. The results of the research conducted by the Supreme Court are authorized to examine and adjudicate requests for judicial review of the Ministerial Regulation at the Supreme Court. The panel of judges in deciding to reject the Petitioner's petition in case Number: 25 P / HUM / 2018 was actually sufficient based on the Petitioner's legal standing because the Petitioner did not clearly state what rights the object of the petition for judicial review had given to the Petitioner and did not specify the form losses suffered directly by the Petitioner.

The recent Supreme Court decision Jaffee v. Redmond (1996) recognized a psychotherapist-patient privilege in federal court. The background of privileged communication laws in general, the federal privileged communications rules in particular, the facts behind Jaffee v. Redmond, and the final court ruling are reviewed. The impact of the decision and possible future directions for the psychotherapistpatient privilege in federal and state courts also are discussed. The recent Supreme Court decision Jaffee v. Redmond ( 996) established that the communications between psychotherapists and patients are privileged in federal courts under certain circumstances. In this article we describe the general provisions of privilege communications law, the Jaffee v. Redmond case, the likely future directions for the psychotherapist-patient privilege in federal courts, and the potential effects this decision may have on state courts. In explaining the impact of the decision, we review the rationale for privileged communication laws in general and the background on federal privileged communication laws in particular.

Lincoln and Chief Justice Taney JAMES F. SIMON* Abraham Lincoln and Chief Justice Roger B. Taney may have met only twice—in 1849, when Lincoln made an oral argument before the Supreme Court, and in 1861, when Chief Justice Taney administered the presidential oath of office to Lincoln. The two men’s roles in American history are inextricably bound nonetheless, as I will attempt to demonstrate in this essay. The first meeting of Lincoln and Taney probably took place when Lincoln made his only argument before the Supreme Court of the United States in March 1849. It occurred shortly before he had completed his single— and, to Lincoln, very disappointing—term as a member ofthe U.S. House ofRepresentatives. At that time, he felt that he had made no signif­ icant mark in his two-year congressional term and was resigned to returning to Springfield to resume his full-time law practice.1 In his Supreme Court argument, Lincoln represented the estate of an Illinois resident, Matthew Broadwell, who in 1819 had sold a parcel ofland in Ohio to a man named William Lewis. The problem, Lewis later discovered, was that Broadwell did not own the land. After the rightful owner ejected Lewis from his land in 1825, Lewis sued Broadwell for damages.2 In his Supreme Court argument, Lincoln did not dispute that Broadwell had sold Lewis land that he did not own. He argued only that by the time Lewis sued, the statute of limi­ tations had run, so Lewis could not lawfully collect from Broadwell’s estate. It came down to a legal question of statutory interpretation. Lincoln lost the case, and ChiefJustice Taney wrote the majority opinion rejecting his argu­ ment.3 It was the first time that Lincoln and ChiefJustice Taney disagreed in a dispute be­ fore the Supreme Court, but it would not be the last. When Lincoln presented his argument in the Lewis case, the Justices of the Supreme Court did not sit in the current magnificent courtroom— or any other. In fact, they listened to Lincoln’s argument in a room in the base­ ment of the Capitol building. One member of the Court, Justice John Catron of Tennessee, later blamed the dark, dank basement quarters for the bad health of many ofthe Justices.4 We have no physical description of Lincoln when he argued the Lewis case 226 JOURNAL OF SUPREME COURT HISTORY Lincoln argued one case before the Supreme Court, Lewis v. Lewis, in 1849, a mundane land-sale dispute that received little attention. Lincoln was admitted to the Supreme Court Bar on March 7 on the motion of Washington attorney Alexander H. Lawrence, who argued the case that day. As co-counsel, Lincoln made the concluding remarks the following day in what is now the refurbished Old Senate Chamber. before Chief Justice Taney and his Brethren. But thanks to photographs and contemporary accounts, we know that Lincoln was very tall—about 6'4"—and thin and spoke in a high, slightly shrill voice. His success as a trial lawyer was by then well established. He spoke plainly and effectively to bothjuries and judges.5 In his Supreme Court brief, Lincoln ap­ pealed to what he termed “the dictate of com­ mon sense,” which, he added, “seems to be the perfection of reason.” In urging the Court to adopt his statutory interpretation, Lincoln asked the Justices to draw their conclusions, in his words, “without any metaphysical or hair splitting distinctions.”6 When Taney heard Lincoln’s oral argu­ ment, the ChiefJustice was seventy-two years old, thirty-two years older than Lincoln. Like Lincoln, Taney was tall and thin. But unlike the Illinois lawyer, Taney never possessed Lin­ coln’s physical vigor. Since Taney had been a young lawyer in Maryland, he regularly com­ plained that the stress of his work threat­ ened his health. His complaints were con­ stant, and so was his success as a trial lawyer and as the state’s attorney general. Later, he served President Andrew Jackson as U.S. At­ torney General and Secretary of the Treasury and shared Jackson’s aversion to vested cor­ porate interests. Taney, like President Jackson , was an avowed...

Documentary Editing and the Jay Court: Opening New Lines of Inquiry Ene Sirvet and R.B. Bernstein For too long, Americans have thought that the history of the Supreme Court of the United States began with John Marshall. Even many lawyers, legal scholars, and historians, though aware that three Chief Justices preceded Mar­ shall, have dismissed their tenures as insignifi­ cant at best, failures at worst. Evaluating the Supreme Court that was by reference to the pow­ erful appellate tribunal that is wrongly gauges a Chief Justice’s success by two rules of thumb: did the Court under that ChiefJustice hand down important constitutional decisions that have be­ come bulwarks of modem American constitu­ tional law? Was that ChiefJustice a leading force in promulgating such decisions? Using the modem understanding of the Su­ preme Court as a measure to evaluate earlier Courts obscures how, by a process neither unop­ posed nor foreordained, the Court became the center of gravity of American constitutionalism. Moreover, focusing the historiography ofthe fed­ eral courts on the Supreme Court scants the vi­ tal role played in the development of American law by the lower federal bench, whether trial or appellate. The Promise of Documentary Editing One factor obscuring the early Court was the difficulty of access to historical evidence. Until recently, most primary sources for the early Court were unpublished, scattered in repositories around the nation, and difficult to use for any­ one lacking historical background and legal training. Lawyers of that era used a complex legal jargon that can baffle unprepared research­ ers. For example, studying the federal circuit courts requires a grasp of such subjects as the common law writ system and federal jurisdic­ tion. Knowing the difference between a suit “in trespass” and one “in trespass on the case” is key to analyzing the kinds of lawsuits that these courts heard; knowing the rules of federal juris­ diction reveals whether cases were properly brought before the courts and lays bare patterns of interstate litigation and the economic trans­ actions behind such suits. Now the “documentary editing revolution,” hailed by historian William W. Freehling as the most important development in modem Ameri­ 18 JOHN JAY can historiography,' has embraced the federal courts. Not only is John Marshall the focus of one ofthe most distinguished documentary edit­ ing projects, The Papers of John Marshall— two other projects examine the pre-Marshall fed­ eral judiciary: The Documentary History of the Supreme Court ofthe United States, 17891800 and The Papers of John Jay. A documentary history portrays the growth of an institution or process of government, trac­ ing the development ofcollegial relations among its members and its processes of collective deci­ sion-making. A documentary editing project keyed to an individual complements institutional documentary histories by presenting the institution’s development through that person’s eyes—especially when, like Jay or Marshall, he is the institution’s leader. A Chief Justice over­ sees and speaks for the Supreme Court and the federal judiciary; he monitors the administration of the federal bench, the courts’ ability to fulfill their constitutional and statutory duties, and the judiciary’s place in the public mind. Focusing on the first Chief Justice offers a unique view ofthe federal courts’ early develop­ ment. This is the goal ofthe last volume of The Papers ofJohn Jay: ChiefJustice and Feder­ alist Statesman, 1789-1829, which will exam­ ine Jay as the Court’s ChiefJustice and as one of six circuit judges. It will assess the burdens he faced while riding circuit and while presiding over the Court, leading his colleagues in defin­ ing the Court’s role in an evolving constitutional system. It will describe the number and kinds of cases that Jay heard, and it will trace patterns of federal litigation. It will analyze how Jay and his colleagues grappled with the problem of extrajudicial activities and responsibilities— those imposed by Congress (as in the 1792 stat­ ute asking the Justices to hear RevolutionaryWar veterans’ pension claims) and those sought by President George Washington and his adminis­ tration (such as his 1793 request for an advisory opinion from the Court, discussed in the follow­ ing article, and his 1794 naming of Jay as Min...