The Supreme Court of the United States is at once the least and the most accessible branch of the federal government. Unlike the executive and legislative departments, its members are appointed rather than elected, and once appointed they serve during good behavior, a virtual grant of life tenure. While the justices hear arguments of cases in open court, they make their decisions in a secret conference, one so closed to the outside world that we have knowledge of its operations only through the usually fragmentary notes kept by the justices. When in conference to debate and decide cases, the justices are alone with each other, excluding even their trusted law clerks.
Yet for all of its secrecy, the Court must ultimately explain most of its decisions through written opinions. The almost five hundred volumes of United States Reports, the official reporter of the Supreme Court, provide mute testimony to the Niagara of words that has cascaded from the high court in the past two centuries. In seeking to explain itself, of course, the Court fulfills its ultimate responsibility—to provide, as the inscription above the main entrance of the Supreme Court Building indicates, “Equal Justice Under Law.” Because the Court is the highest tribunal for all cases and controversies arising under the Constitution or laws of the United States, it functions as the preeminent guardian and interpreter of the Constitution. The editors of The Oxford Companion to the Supreme Court of the United States have taken as their chief task the illumination of the way in which the Court performs this crucial role.
Chief Justice Charles Evans Hughes once declared that the Court is “distinctly American in concept and function.” Few other courts in the world have the same scope of power to interpret their national constitutions; none has done so for anything approaching the more than two centuries the Court has been hearing and deciding cases. As Alexis de Tocqueville observed in Democracy in America, “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 any people.”
Given the influence that the Court has exercised over American life during the past two centuries, its story is more than just facts and figures, more than just justices and cases. Its story has been, instead, the history of the country itself. Once again, Tocqueville captured the significance of the Court when he observed that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Through the decisions of the Supreme Court, the law has become an extension of political discourse. Anyone seeking to understand the Court must, at the same time, come to terms with the political, social, and economic forces that have generated so much of its work.
We think of the Supreme Court as a legal institution, and certainly it is that. The editors of the Companion, however, have also approached the Court as a hybrid political, social, economic, and cultural institution, one that speaks through the law but whose decisions shape and at the same time are shaped by the social order of which it is a part. Hence, the Companion is meant to capture the drama of the Court, both in its reaction to the social pressures that bear upon it and in its internal struggles over the Constitution’s meaning. In most instances, moreover, the two—external pressures and internal conflict—have been closely related. Recall, for example, the battle between Chief Justice Roger B. Taney and Associate Justice Benjamin R. Curtis over the constitutional basis of slavery in the Dred Scott case (1857). Their legal disagreement about whether persons of African descent could be citizens of the United States mirrored the larger struggle between North and South on the eve of the Civil War. In this volume, we have sought to humanize the high court, to place the justices and their decisions within the general framework of American history and life, and to illuminate the practice as well as the theory of “Equal Justice Under Law.”
This book provides a comprehensive guide to the history and current operation of the Supreme Court. It does so through an alphabetical organization that comprises several broad categories of entries. Biographical entries explore the personal and professional careers of all of the justices, the nominees who were rejected by the Senate, the most prominent lawyers who have argued before the Court, and many other figures important in the Court’s history. Biographical sketches of the justices, such as those about John Marshall and (p. x) Oliver Wendell Holmes, Jr., include information about their family origins, educations, important formative influences, and occupations, and concentrate on the subjects’ legal and judicial careers, the reasons for their attainment of coveted positions on the high court, and the contributions that they made to constitutional law once on the bench.
Another category of entries treats concepts that are central either to the Court’s operation or to the meaning of American constitutionalism—including such protean topics as due process of law, separation of powers, and equal protection of the law. Such entries define a concept and trace its historical origins and development; explore the role the concept plays in the Court’s operation; discuss the current understanding attached to the concept by lawyers, judges, and scholars; and investigate the meaning of the concept generally in American history and legal culture.
A special emphasis of the volume is on explaining the way in which the justices conduct the day-to-day operations of the Court—its processes, practices, and procedures. Thus, institutional entries cover, in historical perspective, such topics as the office of the chief justice, the judicial clerks, the assignment and writing of opinions, and the justices’ workloads. In addition, a number of articles focus on the physical surroundings of the Court, including buildings that have historically housed the Court, and the architecture of the current Supreme Court building. Interesting, as well, are brief pieces on such subjects as the Supreme Court press room and library, the justices’ chambers, and the paintings and sculpture adorning the Supreme Court building.
More than four hundred entries in yet another category examine the Court’s decisions, from the great case of Marbury v. Madison (1803), which established the power of the justices to review the constitutionality of acts of Congress, to Pollock v. Farmers’ Loan & Trust (1895), which declared the federal income tax unconstitutional, to Baker v. Carr (1962), which required that legislative districts be apportioned on the basis of “one person, one vote.” The editors have selected the most historically significant of these cases, ones that shed light not just on the evolution of constitutional law but also on the nation’s underlying social, cultural, and political dynamics. These entries, therefore, typically provide background information on the case, explain the way in which the justices decided the case, explore any disagreement among the justices about the legal doctrines and public values at stake, and offer insights into what impact the decision has had—on the law and on American life.
Also included in the volume are broad, interpretive entries designed to further two goals. First, a wide range of essays sums up developments in important substantive and procedural areas in which the Court’s decisions have had a vital effect on the life of the nation. For example, there are informative treatments of substantive topics ranging from abortion, affirmative action, censorship, education, employment discrimination, and gender, to libel, obscenity and pornography, race and racism, religion, and school prayer; and of procedural topics ranging from cameras in the courtroom and coerced confessions to the insanity defense, right to counsel, self-incrimination, and trial by jury. These essays fashion coherent overviews of major bodies of the Court’s work, and are among the most important in the Companion because they explore the dynamic relationship between the Court and the society of which it is a part, and the ways in which social demands are mediated into legal responses.
Second, there are four sweeping chronological essays that together form the entry “History of the Court.” These articles provide an overview of crucial developments during the entire course of the Court’s and the nation’s history: Establishment of the Union (1789–1865); Reconstruction, Federalism, and Economic Rights (1866–1920); The Depression and the Rise of Legal Liberalism (1921–1954); and Rights Consciousness in Contemporary Society (1955–1990). Taken as a whole, the “History of the Court” entry explains the process of social demand and legal response that has been such an integral feature of the Court’s history, and traces the Court’s evolution as the nation’s most important body to interpret the Constitution. Also included in the volume is a wide array of articles on historical subjects of particular significance in the history of the Court, including pieces on slavery, Reconstruction, World Wars I and II, the Vietnam War, the civil rights movement, Progressivism, and many more.
A final category of entries explains vocabulary and phrases. These articles are of two kinds: basic technical terms (what is a “writ of mandamus”?) and famous words and phrases associated with the Court (such as the phrase “separate but equal” used in Plessy v. Ferguson [1896] or “with all deliberate speed” formulated in Brown v. Board of Education II [1955]).
In creating this volume, the editors wished to make authoritative information about the Court available and accessible to a wide range of readerships, including students, general readers, scholars in law, history, political science, and related disciplines, and professionals in a variety of areas—lawyers, judges, journalists, public servants, and others. There was, and continues to be, a great deal of writing about the Court, but much of it is both highly technical in nature and not readily available to an extended readership, (p. xi) being stored in monographs and in technical publications in specialized libraries. The editors have sought to fill this need for a widely available, authoritative reference source on all aspects of the Court. In the end, almost three hundred contributors have brought to the volume the far-ranging insights and expertise of many disciplines, their ranks including lawyers, judges, journalists, and scholars. They were encouraged to make their presentations fully accessible to a general readership, by offering historical and interpretive background to their subjects, and by avoiding the use of arcane legal terminology.
Within the covers of this volume, there are subjects and perspectives of interest to a diverse array of readers. For nonspecialists, areas of particular note are the volume’s extensive offerings on the internal operations and history of the Court; its wealth of biographical information on all of the justices and other major historical figures; its definitions of basic legal and constitutional terminology; its coverage of the process by which justices are selected, nominated, and confirmed (including an entry on the important Senate Judiciary Committee); and its wide-ranging treatment of historical subjects like the famous court-packing incident of 1937, the history of the Japanese Relocation cases, and the role of the Court in dealing with issues such as racial segregation and affirmative action. The broadly formulated interpretive entries described above should be of substantial interest to both general and more specialized readers. Readers with a specialized or technical interest in the Court should note in particular the volume’s thorough coverage of the Court’s major decisions, as well as its discussions of the Court in relation to important aspects of constitutional law, both substantive and procedural. Some of the essays in the Companion are technical in nature; after all, a comprehensive treatment of the Court implies coverage of matters such as the Court’s stance on the “Takings” Clause of the Constitution, and the issue of reciprocal tax immunities—perspectives of interest to lawyers, judges, and other specialists.
The editors hope that all readers will benefit from the efforts to cast subjects in broad terms, to do more than present the law. Throughout, contributors have sought to interpret the Court as a symbol of the values of American culture and as an institution whose behavior affects our daily lives. The essay “Contraception,” for example, reviews the ways in which the Court’s decisions have influenced the most intimate social relations. The essay “First Amendment” assesses the scope of freedom that Americans enjoy in expressing their political ideas. Other entries highlight a variety of cultural perspectives on the Court—including possibilities for understanding the Court’s place in American popular culture through movies, plays, and novels. We hope that the Companion serves all of its readers well.
How to Use the Companion
The Companion is organized alphabetically with several kinds of cross-references. These cross-references form a carefully planned pattern of articles designed to guide the reader to topics of related interest and from there to topics of general interest. For example, a reader interested in judicial self-restraint would find references leading to a discussion of cases and controversies, the doctrines of standing, ripeness, and mootness, and ultimately to the article on judicial review. There are also two indexes—one for all cases mentioned in the volume and the other for topics, proper names, and concepts—and several appendixes. Each element of the Companion is meant to complement the others and to facilitate the user’s search for information.
Entries in the Companion are arranged in alphabetical order on a letter-by-letter rather than a word-by-word basis. Hyphens and spaces between words are ignored, but punctuation marks such as commas and semicolons are taken into account; thus “Johnson, Thomas” precedes “Johnson and Graham’s Lessee v. McIntosh.” In most instances, this system is straightforward enough. The entry “Cohens v. Virginia,” for example, precedes “E. C. Knight v. United States”; however, “Cohens v. Virginia” also precedes “Cohen v. California,” since the letter “s” in Cohens” comes alphabetically before the “v” in “Cohen v.” Entry terms that are this closely linked alphabetically are relatively rare. In addition, entries on cases in which the United States is involved as a plaintiff are listed under the name of the other party. For example, the case United States v. Robel is found as the entry “Robel, United States v.” The same holds true for ex parte cases, such as “Siebold, Ex parte.”
Each case included as an entry opens with standard information. After the name of the case, readers will find the official United States Reports citation—for example, the case of Kent v. Dulles can be found at 357 U.S. 116, meaning that the case appeared in volume 357 of United States Reports and that it begins on page 116. The year the case was decided follows in parentheses. The article opening goes on to provide the date or dates argued (in Kent it was 10 April 1958) and decided (16 June 1958); the justices’ vote (5 to 4); who wrote for the Court (Justice Douglas); who, if anyone, joined with a concurring opinion; and who dissented (Justices Clark, Burton, Harlan, and Whittaker).
The Companion relies on several cross-referencing schemes to facilitate its use. At the highest (p. xii) level of organization are blind entries. Blind entries appear within the alphabetical range of headwords, and, for synonyms, related subjects, and inverted terms, refer the reader to the actual entry term under which the topic is discussed. For example, the blind entry “Pentagon Papers Case” refers the reader to the case’s official title, New York Times v. United States (1971). In some instances, a blind entry will send the user to another entry that discusses the concept as part of a larger topic. For example, “Peremptory Challenge” appears as a blind entry that directs the reader to the entry, “Due Process, Procedural.”
Within the body of an article, cross-references may also be denoted by insertion of an asterisk. Topics marked in this way will be found elsewhere in the volume as separate entries. For example, in the entry “Boyd v. United States” the terms Fourth and Fifth Amendments and privacy are preceded by asterisks, meaning that the reader may wish to look up the entries “Fourth Amendment,” “Fifth Amendment,” and “Privacy.” In some instances, an item marked with an asterisk may not exactly match the form of the entry term. For example, the concept of substantive due process of law is mentioned several times in the Companion, but the entry term for this article is inverted as “Due Process, Substantive.” When a cross-reference is being made to this entry in another article, the phrase appears as “substantive *due process,” which then leads the reader alphabetically to “Due Process, Substantive.” Note as well that there is a separate entry titled “Due Process, Procedural.” When the use of an asterisk is not feasible, or when doing so would be misleading or unclear, the cross-reference is made parenthetically. For example, in the essay on Justice Joseph P. Bradley, there is a discussion of the doctrine of “affected with a public interest.” There is no entry in the Companion that specifically treats this term, but it is discussed at length in the entry for the case Munn v. Illinois (1877), which has thus been placed after the term as a parenthetical cross-reference. Finally, at the end of many entries there are cross-references that direct the user to related or expanded discussions found in other entries. For example, following the entry “Abington School District v. Schempp,” a case involving the issue of prayer in public schools, the reader will find a cross-reference to “Religion,” an extended essay on the entire subject of the Supreme Court’s treatment of religion.
Two other items follow at the end of each entry. Many entries list bibliographical references that users may find helpful if they wish to learn more about the topic in question; longer essays are typically supported by the most bibliographical material. Every effort has been made to include in the bibliographies nontechnical literature that is readily available in a good public library. We have given special attention to books because they are, on balance, usually more accessible than are specialized journals in law, history, and political science. The second item, which either follows the end of the bibliography or, if there is none, the text, is the name of the article’s author. To find all articles in the Companion by a particular contributor, readers may consult the topical index.
Appendixes have been placed at the end of the Companion to provide additional material that does not readily fit in any one entry but that is important to understanding the history and current operation of the Court. These appendixes include tables indicating the succession of justices; the number of days that particular seats on the Court have been left vacant; the presidents who appointed the justices; the Senate votes (when votes were taken) to confirm or reject nominees; and the length of service of each justice. Where appropriate these lists also include persons who were nominated for a position on the high court but who, for a variety of reasons, never served. An additional appendix includes a list of trivia and firsts (for example, what justice served the longest? who was the first woman admitted to the bar of the Supreme Court?) and of traditions (why are the justices seated in a particular way?).
In addition to the cross-references and appendixes, the analytical power of the Companion is enhanced by two indexes. The first is an index of every case mentioned in the Companion along with its proper citation. In the instance of Supreme Court cases the citation is to United States Reports rather than the nominative reports, such as Dallas, Cranch, and Wheaton. The reader interested in learning more about these nominative reporters, who published the Court’s decisions until 1874, should turn to the entry “Reporters, Supreme Court.” The only exception to the use of United States Reports occurs when cases recently decided were available at the time of publication only through the unofficial Supreme Court Reports, Lawyers’ Edition, or U.S. Law Week. The decisions of lower federal courts are cited in Federal Cases, for reports in the district and circuit courts up to 1880; the Federal Supplement, for district cases since 1880 and circuit cases from 1880 to 1932; and the Federal Reporter, for circuit court and U.S. Court of Appeals decisions since 1932. When citing state cases, the editors have relied on the official reports, which are issued by the courts themselves as the authoritative text of their decisions, rather than the widely used but unofficial reports of the West Publishing Company (National Reporter System) and Lawyers Co-operative Publishing Company (American Law Reports). Some states, of course, have ceased issuing their own reports and have instead adopted the National Reporter System as (p. xiii) their official reporter. The case index covers more than just the cases listed as entries; it encompasses all of the cases mentioned anywhere in the volume. Hence, even if a case is not covered as an entry, it may well appear somewhere in the volume, and the case index is the best way to determine if it does.
The Companion also has a topical index that directs readers to concepts, persons, places, and institutions mentioned in the text. For example, a user interested in learning about all of the references made to religion that fall outside of the entry “Religion” can turn to the index, which will direct the user not only to cases involving religion but to the use of the concept of religion by the Court. The topical index supplements and reinforces the system of cross-references employed in the main body of the work, and provides access to detailed points of information that are not themselves the subjects of independent entries.
