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Introduction

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 28 October 2021

In the thirteen years since publication of the first edition of The Oxford Companion to the Supreme Court of the United States there have been both change and continuity in the high court. Two justices have left, Byron R. White in 1993 and Harry A. Blackmun in 1994. President Bill Clinton replaced them with, respectively, Ruth Bader Ginsburg and Stephen G. Breyer. Since 1994 the Court has remained remarkably stable in its membership. In fact, since the Court was expanded to nine members in 1837, there has never been a longer period of continuous unchanged membership. As this volume goes to press, however, change seems inevitable. While not on average the oldest bench in the nation’s history, the membership of the current Court has become decidedly senior, the average age of the justices being seventy years. Moreover, Chief Justice William H. Rehnquist is ailing with thyroid cancer and two other members of the Court, Justices Ginsburg and Sandra Day O’Connor, have each had bouts with cancer. Age alone is not a barrier to service on the bench. The oldest justice on the Court, John Paul Stevens, remains at eighty-five remarkably healthy, jogging as much as two miles a day. Oliver Wendell Holmes, Jr., one of the Court’s most celebrated figures, was ninety when he retired in 1932. Nevertheless, President George W. Bush will have an opportunity to alter significantly the composition of the Court in his second term. To date, Bush and Jimmy Carter are the only presidents in American history to serve a full term without making an appointment to the high court. Although Franklin D. Roosevelt made no appointments during his first term, he went on to name nine justices to the Court, a record second only to that of George Washington.

The justices are the human face of the often mysterious Supreme Court. In this second edition of the companion, there are articles on each of them, including new ones on Ginsburg and Breyer, and revised articles on many of the other members of the Court, notably those justices who have continued to serve either some or all of the time since the first edition was published.

In the past thirteen years, the Court has had to settle major constitutional controversies. It resolved the hotly contested presidential election of 2000, capturing the White House for Bush over his Democratic opponent, Al Gore. There have been other controversial decisions as well. The Court has tackled abortion, affirmative action, punitive damages, property rights and land-use regulation, the scope of the Commerce Clause, campaign financing, states’ rights and sovereign immunity, the rights of Native Americans to operate casinos, hate speech and a raft of other First Amendment issues, and a host of criminal justice matters. Because the decisions of the Court are its most important contribution to the development of American constitutionalism, we have added more than sixty new articles on cases that have been decided beginning with the 1992 term and the ending with the 2004 term. We have also expanded, edited, and revised many of the other articles dealing with cases, taking note of how developments in the past thirteen years have cast those earlier cases into new relief. As has been true throughout the Court’s history, its work tends to mirror events in American society. Only recently, for example, the justices have been asked to decide the fate of persons held by the United States government following the terrorists attacks of 11 September 2001.

The Court has also continued to develop as an institution. The attacks of 11 September and the continuing threat of new terrorist activity have heightened security around the Court, although, remarkably, the justices and the building in which they work remain accessible to the average citizen. The revolution in information technology has even more fully penetrated the work of the Court than it had a decade ago. This second edition details how new technologies have had an impact on how the justices do their work. The Court, for example, now has its own web site (http://www.supremecourtus.gov/) that serves the public, the media, and litigants’ counsel.

Since the publication of the first edition, some of the original authors have passed away. Their articles, in some cases, have been revised, and in doing so we have identified both the new author and the original author. In other instances, living authors elected not to revise their articles; the editors assigned the task of revision to new scholars, who are now identified in the signature lines.

(p. viii) As was true in the first edition, this new edition features subjects and perspectives of interest to a wide variety of readers. We have, as we did earlier, given each author the opportunity to exercise his or her voice in writing, but we have been careful to make sure that no article serves as an uncritical sounding board for only one ideological perspective, especially on contested matters such as abortion and affirmative action. We also have continued the tradition set in the first edition of making sure that every article interprets the Court as a symbol of the values of American culture and as an institution whose behavior affects the daily lives of American citizens. The Court does not merely present the law of the land, although that function is at once critical and central to understanding its importance. We have also underscored the growing importance of the Court as an institution of international influence and, at the same time, one that is increasingly being influenced by forces beyond the nation’s borders. We believe that the Court’s increasing attention to and use of international constitutional perspectives will only grow in importance over the next decade.

How to Use the Companion

This second edition is organized much as the first: in alphabetical order, with several kinds of cross-references. The general arrangement is explained in the Introduction to the first edition, which follows this Introduction. A special word is in order about the material in the appendixes. They present information that would not readily fit in the main body of the book, but that is essential context for its understanding. The appendix tables indicate 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 justices. These tables have been updated, revised, and in a few instances corrected from the first edition. This arrangement provides the reader with a relatively simple set of tables by which to address specific questions about the justices rather than one large, complicated table to interpret. It also means that the reader can follow the important milestones in the career of each nominee to the bench.

There is an additional appendix that includes trivia and little known facts about the Court and its justices. These have been updated to reflect not only developments since the first edition but also to add material available but not included in the first volume. Users have told us that these appendixes are valuable parts of the Companion.

Acknowledgments

The Companion was at its creation and remains in its second edition a team effort. A separate directory of contributors is included at the beginning of the book showing their institutional affiliations, where appropriate. Without the scholarship, learning, and erudition of these contributors, the Companion would not have enjoyed the tremendous success that it achieved in the first edition and that we hope will continue in this second edition. As was true with the first edition, this latest incarnation of the Companion draws from many different fields: law, political science and government, history, sociology, criminal justice, and anthropology. Its approach is intentionally multidisciplinary, one designed to link law and society.

Along the way we received excellent support from the libraries and their staffs at Utah State University Library, Vanderbilt University, and the Johns Hopkins University. In addition to those who contributed to the first edition, we also recognize the fine assistance of the following to the second edition: Mica McKinney, Neil Abercrombie, James N. Taylor, Tricia Randall Norton, Rose Ernstrom, Teresa Denton, and Diane Barnett. William Wiecek, a distinguished law teacher and legal historian, was unable to participate in the preparation of this second edition because of other professional commitments. His contributions to the first edition were significant, although his name is not carried as an editor of this second edition.

We are especially grateful to Stephen Wagley, our editor at Oxford University Press, whose patience, professionalism, superb organization skills, broad knowledge of reference publishing, and genuine interest in the work of the high court continue in the great tradition of the Press he serves. As was true with the first edition, both the editors and authors have been well served by the professionalism of the Oxford University Press staff. The shortcomings that remain are those of the editors alone.

1 February 2005

Kermit L. Hall

Editor in Chief

James W. Ely, Jr.

Joel B. Grossman

Editors