VIEWPOINT: A Letter to the Chief Justice

Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. One important effect of this development has been to focus Australian constitutional debate on the long standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution and over the century since the framing, it has been a constant point of reference for the High Court of Australia. However, the influence of the First Amendment is particularly significant since the Bill of Rights and the other rights provisions of the United States Constitution have traditionally been thought of as a part of the American constitutional tradition which Australia does not share. The influence of American constitutional jurisprudence, and specifically First Amendment law, in the High Court of Australia has never been more significant than in the most adventurous of its decisions on the freedom of political communication: Theophanous v Herald and Weekly Times and Stephens v West Australian Newspapers. Here, the High Court significantly expanded the protection of political communication by adopting a rule similar to the New York Times v Sullivan doctrine. That is, the Court limited the capacity of political figures to bring actions for defamation. However, most unusually for recent decisions of the High Court, these cases were reconsidered and considerably reformulated by the Court only three years after they were first announced, in Lange v Australian Broadcasting Commission. The short life of these cases appears to lend fuel to those who argue against the use of the American precedent, and specifically First Amendment jurisprudence, in interpreting the Australian Constitution. In this article, I will join those who have expressed such concerns. My focus, however, is somewhat different from previous analyses. I will consider a difference between the two systems that has been overlooked: the different jurisdictions of the highest appellate courts. The High Court, unlike the Supreme Court of the United States, has jurisdiction to hear appeals from all courts, state and federal. In hearing these appeals, it has jurisdiction over matters of common law as well as federal law and the Constitution. The significance of the High Court's role as the interpreter of the common law was highlighted by Theophanous and Stephens. In those cases, argument was addressed to the High Court on both the protection of freedom of speech by the Constitution and by the common law of defamation. Had it been so inclined, the Court could have avoided the constitutional issue entirely through a decision on the common law. However, the principal basis of the decision of the majority was the Constitution. In my view, the Court’s failure to appreciate the significance of its common law jurisdiction helps explain where the High Court went wrong in Theophanous and Stephens, and how it might have avoided facing so serious a challenge to recent cases as it did in Lange. Before proceeding to make this point, however, I devote Part I of this article to explaining the nature and origins of the High Court’s jurisdiction on matters of common law and compare it to the jurisdiction of the United States Supreme Court. In Part II, I outline Theophanous and Stephens and compare the constitutional approach of the majority to the common law approach of two of the dissenting Justices. Part III contains the heart of my argument. I consider how the High Court ought to proceed when a case before it can be decided either by the common law or by interpretation of the Constitution. I argue that the common law brings with it significant advantages so that in many cases where the two overlap, the High Court ought to prefer the common law and I use Theophanous and Stephens to illustrate my point. In Part IV, I identify more precisely the kinds of cases in which the benefits of a common law solution should lead the High Court to prefer it and defend my argument against some of the most obvious objections to it. Finally, in Part V, I consider the reformulation of the Theophanous doctrine in Lange and the extent to which that decision is responsive to the critique I have launched.

This chapter sets out and justifies the building blocks of commitment and cooperation. These two dimensions allow the authors to situate high courts relative to each other. They use them to focus on the five main high courts in their study, namely, the US Supreme Court, the UK Supreme Court (and its predecessor House of Lords), the Supreme Court of Canada, the High Court of Australia, and the Indian Supreme Court. This chapter provides both a preliminary assessment of how these courts sit relative to each other along these two dimensions and a brief overview of the key design choices made by each of these courts.

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.

EACH TERM of the Supreme Court seems to have something to distinguish it from those that have preceded it. With the resignation of Chief Justice Earl effective at the close of the 1968-69 term, this term will remain forever as a milestone for it marked the close of the Warren era as this period has come to be known. Regardless of how the Court moves ideologically in the years to come, it will no longer be the Warren Court. President Nixon named Minnesota-born and educated Earl Burger of the United States Court of Appeals of the District of Columbia to fill the vacancy in the office of Chief Justice. The resignation of Associate Justice Abe Fortas in May gave the newly inaugurated President another vacancy to fill. Clement Furman Haynsworth, Jr., of Virginia, Chief Judge of the Fourth Circuit Court of Appeals was named but the Senate refused confirmation on November 21, 1969. President Nixon then named George Harrold Carswell, a member of the Fifth Circuit Court of Appeals. Chief Justice Burger is from Virginia and Justice Carswell is from Florida. In its work this term the Court again set a new all-time record in cases disposed of with a total of 3,151. In the 1966 and 1967 terms the totals were 2,903 and 2,973, respectively. In each term since that of 1953 the Court has set a new record of cases disposed of except in the 1958 and 1964 terms. The cases remaining on the docket increased to another apparently all-time high of 767 compared with 453 and 613 in the previous two terms respectively. Cases argued were down to 140 as against 180 in the 1967 term and 150 in the 1966 term. Of the cases argued, 116 were disposed of by 99 written opinions and 14 by per curiam opinions. Ten cases were set for reargument. Again the division of labor in the writing of opinions was well-nigh even among the justices. Justice Marshall wrote thirteen opinions. Chief Justice Warren, Justice Douglas, and Justice Brennan each wrote twelve, and they were followed by Justice Black and Justice Stewart with eleven each, and Justice Harlan and Justice White with ten each. Justice Fortas wrote eight. Dissenting opinions totaled 77 by comparison with 79 in the 1967 term and 74 in the term before that. Justice Black with eighteen dissenting opinions displaced Justice Harlan with sixteen as the champion dissenter. They were followed by Justices Stewart (thirteen), Douglas (nine), White (eight), Fortas (six), (four), Marshall (two), and Brennan (one). The Court adjourned on June 23, 1969, the latest date since the June 25 adjournment in 1962.

A Declaration of Rights Lost: The Diminution of Tennesseeans' Civil Rights

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...

Previous articleNext article No AccessResearch NotesJudicial Career Patterns and Majority Opinion Assignment on the Supreme CourtElliot E. SlotnickElliot E. Slotnick Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Politics Volume 41, Number 2May, 1979 Sponsored by the Southern Political Science Association Article DOIhttps://doi.org/10.2307/2129783 Views: 5Total views on this site Citations: 15Citations are reported from Crossref Copyright 1979 Southern Political Science AssociationPDF download Crossref reports the following articles citing this article:Erin B. Kaheny, John Szmer, Robert K. Christensen Status characteristics and their intersectionality: majority opinion assignment in state supreme courts, Politics, Groups, and Identities 8, no.55 (Feb 2019): 894–917.https://doi.org/10.1080/21565503.2019.1569538Drew Noble Lanier Acclimation Effects and the Chief Justice: The Influence of Tenure and Role on the Decisional Behavior of the Court’s Leader, 1888-2007, American Politics Research 39, no.44 (Jul 2011): 682–723.https://doi.org/10.1177/1532673X11401813Drew Lanier Acclimation Effects and the Chief Justice: The Influence of Tenure on the Decisional Behavior of the Court’s Leader, 1888-2007, SSRN Electronic Journal (Jan 2011).https://doi.org/10.2139/ssrn.1846631Solomon Omoregie Ukhuegbe Recruitment and Tenure of Supreme Court Justices in Nigeria, SSRN Electronic Journal (Jan 2011).https://doi.org/10.2139/ssrn.2034920Forrest Maltzman, Paul J. Wahlbeck A Conditional Model of Opinion Assignment on the Supreme Court, Political Research Quarterly 57, no.44 (Dec 2004): 551–563.https://doi.org/10.1177/106591290405700404Lori Hausegger, Stacia Haynie Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division, Law <html_ent glyph="@amp;" ascii="&"/> Society Review 37, no.33 (Sep 2003): 635–657.https://doi.org/10.1111/1540-5893.3703006C. L. Ostberg, Matthew E. Wetstein, Craig R. Ducat Acclimation Effects on the Supreme Court of Canada: A Cross-Cultural Examination of Judicial Folklore *, Social Science Quarterly 84, no.33 (Aug 2003): 704–722.https://doi.org/10.1111/1540-6237.8403013Saul Brenner, Timothy M. Hagle Opinion writing and acclimation effect, Political Behavior 18, no.33 (Sep 1996): 235–261.https://doi.org/10.1007/BF01498601Timothy M. Hagle A NEW TEST FOR THE FRESHMAN EFFECT, Southeastern Political Review 21, no.22 (Nov 2008): 289–308.https://doi.org/10.1111/j.1747-1346.1993.tb00364.xTerry Bowen, John M. Scheb Reassessing the “freshman effect”: The voting bloc alignment of new justices on the United States Supreme Court, 1921–90, Political Behavior 15, no.11 (Mar 1993): 1–14.https://doi.org/10.1007/BF00993413J. F. Kobylka Leadership on the Supreme Court of the United States: Chief Justice Burger and the Establishment Clause, Political Research Quarterly 42, no.44 (Dec 1989): 545–568.https://doi.org/10.1177/106591298904200407Peter J. Bergerson JUDICIAL BACKGROUND TRAITS UNDER THE MERIT SELECTION PLAN: THE MISSOURI COURT PLAN REVISITED, Southeastern Political Review 15, no.22 (Nov 2008): 169–188.https://doi.org/10.1111/j.1747-1346.1987.tb00241.x Edward V. Heck , and Melinda Gann Hall Bloc Voting and The Freshman Justice Revisited, The Journal of Politics 43, no.33 (Oct 2015): 852–860.https://doi.org/10.2307/2130641 Steven A. Peterson Dissent in American Courts, The Journal of Politics 43, no.22 (Oct 2015): 412–434.https://doi.org/10.2307/2130375 Gregory J. Rathjen Conventional Wisdoms Don't Die Easily: Judicial Career Patterns and the Context of Majority Opinion Assignment, The Journal of Politics 42, no.44 (Oct 2015): 1170–1172.https://doi.org/10.2307/2130746

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

Remembering the Great Chief Justice CHARLES F. HOBSON From the moment he departed mortal life in July 1835, John Marshall secured a place of first rank in the American pantheon. Joseph Story, his close friend and brother judge, pro­ nounced him “a great man”—notjust a great man ofhis time but “a great man in any age, and of all ages...one of those, to whom centuries alone give birth.” Although uttered in the fulsome language of eulogy, Story’s verdict, coming from one who knew Marshall intimately over many years, rings true. Indeed, added Story, Marshall was not one of those celebrated men who “appeared greatest at a distance” and whose “superiority vanished on a close survey”; rather, “it required some degree of intimacy fully to appreciate his powers; and those who knew him best, and saw him most, had daily reason to wonder at the vast extent and variety of his intellectual resources.”1 Today, two hundred years after his ap­ pointment as Chief Justice of the Supreme Court of the United States, Marshall’s reputa­ tion remains as high as ever, resting on a solid foundation that is virtually resistant to icono­ clastic attack. Both the public at large and es­ pecially the fraternity of lawyers and judges hold Marshall in reverent regard. Even aca­ demics—law professors, political scientists, and historians, whose business it is to study American constitutional law and history—ac­ knowledge his greatness. In any ranking of American jurists, Marshall is always listed among the “greats” and usually heads the list.2 It is true, of course, that Marshall’s reputation benefited from the perception that he was on the “right” side of history. The Constitution is still the framework of our government and our fundamental law; the federal union and gov­ ernment brought into existence by the Consti­ tution have endured, stronger and more pow­ erful than Marshall could possibly have imagined; and the Supreme Court continues to sit here in Washington, enjoying unques­ tioned authority to expound and pronounce the law of the Constitution. The enduring sue- 294 JOURNAL OF SUPREME COURT HISTORY cess of our Constitution and government— and particularly the flourishing state of the ju­ dicial branch—are attributed in no small mea­ sure to Marshall. He was there at the begin­ ning—when the federal government was in its infancy, when the details of the Constitution began to be filled in, when the Constitution first entered the court system as a law to be expounded and applied in the ordinary course of adjudicating cases, and when the Supreme Court first began to acquire its identity as the interpreter and guardian of the Constitution and arbiter of the federal system. Marshall, then, is a “father” or “founder”—the father of the Supreme Court, the founder of American constitutional law— or, as Story dubbed him, “the Expounder ofthe Constitution of the United States.”3 Indeed, so large does Marshall’s shadow loom over the early years of the Supreme Court that many Americans mistakenly assume he was the first Chief Justice, rather than the fourth. The U.S. Postal Service literally gave its stamp of ap­ proval to this assumption back in February 1990, when it issued a commemorative of the bicentennial of the first meeting of the Su­ preme Court. Do you recall whose image was on that twenty-five-cent stamp? Not that of John Jay, the first ChiefJustice. This audience, to be sure, does not need to be reminded that there was a Supreme Court, there was a consti­ tutional law, before Marshall, and that the His­ torical Society sponsors a documentary edition devoted to the Court’s first decade. Long ago, Marshall left the realm of his­ tory and entered the realm ofmyth and symbol. Perhaps Story began the myth-making pro­ cess, but it was carried to completeness by the outpouring of hagiography that occurred dur­ ing the 1901 centennial and especially by the publication of Albert J. Beveridge’s four-volume biography in 1919.4 More than anyone else, Beveridge established the heroic image of Marshall as a colossus who bestrode history and shaped it according to his prescient vision and will. As depicted...

Outcomes of appeals to high courts will depend in part on the ideological preferences of the justices who decide the appeals. The institutional structure of a high court may affect how far these preferences influence outcomes. The US Supreme Court, for example, hears almost all appeals en banc, which means that there is no opportunity to ‘game’ the outcome by choosing which justices hear the appeal. High courts in other countries such as Canada, the United Kingdom, Australia, and Israel, on the other hand, hear appeals in panels of varying sizes and therefore provide potential opportunities for the choice of panel composition to influence outcomes. However, differing panel sizes also provide the opportunity to use judicial resources more efficiently, such as by tailoring panel size to the importance or difficulty of the particular appeal. In the article, we examine both these potential uses of varying panel sizes using data on how chief justices of the Supreme Court of Canada chose panels over the period from 1954 to 2013. We find some evidence of strategic panel composition but the practical impact of such gaming is negligible. In order to examine non-strategic motivations for why chief justices choose different sizes of panels, we develop a model for optimal choice of panel size. The model suggests that, in the presence of scarce judicial resources, panel sizes can be deliberately adjusted to improve allocative efficiency. Using data from the Supreme Court of Canada over the 1954–2013 period, we uncover evidence consistent with our model’s prescriptions for optimal panel sizes.

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...

Holding on to a huge victory for American health

Reviewed by: Supreme Injustice: Slavery in the Nation’s Highest Court by Paul Finkelman Dinah Mayo Supreme Injustice: Slavery in the Nation’s Highest Court. By Paul Finkelman. The Nathan I. Huggins Lectures. (Cambridge, Mass., and London: Harvard University Press, 2018. Pp. [xii], 287. $35.00, ISBN 978-0-674-05121-8.) In addition to editing, coediting, and cowriting volumes on topics in U.S. cultural, political, and legal history, Paul Finkelman is the author of several books on the politics of slavery. In Supreme Injustice: Slavery in the Nation’s Highest Court, he turns to the proslavery decisions of Chief Justice John Marshall, Associate Justice Joseph Story, and Chief Justice Roger B. Taney, the U.S. Supreme Court’s most famous antebellum jurists. Although historians have looked closely at Taney’s superfluously racist defense of slavery in Dred Scott v. Sandford (1857), Finkelman maintains that that case was the culmination of proslavery judgments that began in 1801. Together the justices facilitated the deterioration of sectional harmony and, by extension, the deaths of more than 600,000 Americans. Any of them could have, Finkelman argues, taken advantage of language in the Constitution that could have been used to combat slavery, protect the rights of free African Americans, and effectuate a peaceful, political resolution of slavery. Finkelman provides concise yet informative examinations of the justices’ proslavery jurisprudence through case law, statutes, speeches, letters, archival and historical society collections, newspapers, and scholarly literature. Each chapter contains a short biography and a historiographical discussion that explain how historians have insulated Marshall, Story, and to an extent, Taney from slavery. This trend is especially odd in Marshall’s case, since he was a Virginia slaveholder who crafted jurisprudence that protected criminal slave traders, wrote court opinions to reverse successful lower court freedom suits, sending freed persons back to slavery, and belonged to the American Colonization Society. Story was more complex. He was a New Englander, did not own slaves, and publicly opposed slavery. His time on the Court began during Marshall’s tenure and ended nearly a decade after Taney’s appointment in 1836. Even Story’s early opinions while he was on the Court opposed slavery, including a vote to free the Amistad Africans. However, Story’s ruling in Prigg v. Pennsylvania (1842) nationalized slavery and left free African Americans open to kidnapping. He was labeled the “slave-catcher-in-chief” by abolitionists (p. 170). Taney, like Marshall, was a southern slaveholder who was castigated for the Dred Scott decision. But Taney even experienced a brush with scholarly expiation in the early twentieth century, when historians tried to revise his image. Finkelman debunks these revisions by presenting the proslavery decisions and racist statements that Taney made throughout his career. A welcomed addition is Finkelman’s exposure of Taney’s flawed historical thinking in his Dred Scott opinion. Regrettably, history is still often viewed through a lens that ignores the diverse history of the founding, which included [End Page 155] African Americans’ right to vote in several states and the antislavery position of many of the Framers. Supreme Injustice accomplishes its primary goal by exposing how each justice furthered the interests of slavery. It also introduces readers to freed persons, slaveholders, governors, kidnappers, and abolitionists to exemplify the human cost of Supreme Court rulings. General readers, college students, and professional historians will gain a deeper understanding of the Court and the crisis over slavery. Yet the book is not without shortcomings. Finkelman never fully explains how the justices, especially the slave owners, could have drawn antislavery conclusions from a proslavery Constitution. Additionally, conclusions about Story’s views of Virginians and his transformation from an antislavery to a proslavery position are less than satisfying. In the chapter dedicated to Story, Finkelman determines that Story’s nationalism and fears over disunion instigated the justice’s proslavery rulings after the Nullification Crisis of 1832–1833. However, in the book’s coda, Finkelman questions the validity of a similar interpretation offered by a leading biographer of Story. These flaws do not diminish the book’s contributions. Supreme Injustice is readable, well-documented, and amply researched scholarship that offers a fresh look at the nineteenth-century Supreme Court, with...

This paper uses judicial citation practice to investigate the determinants of judicial influence in the High Court of Australia. First, we construct measures of influence based on the number of times a judge is cited by name in a sample of High Court decisions. The raw citation counts are adjusted to exclude self‐citations, depreciation of legal capital, and variations in terms of period in office. Second, our measures of influence are regressed on a series of explanatory variables including age on appointment, appointing government, prior experience, and whether the judge served as chief justice, for each of the 35 retired judges of the High Court. They suggest that younger appointees with prior judicial experience exert more influence per year on the bench. Our results also suggest that conservative appointees exert more influence than Labor appointees and judges who have served as chief justice exert more influence than puisne judges.

Law & Psychiatry: Congress Restores the Americans With Disabilities Act to Its Original Intent.