1702693160

1702693161 The activities of the Justices while riding circuit are discussed in detail in volumes 2 (1989) and 3 (1990) of The Documentary History of the Supreme Court of the United States, 1789–1800 (New York: Columbia University Press). John Jay’s letter to John Adams, declining the president’s offer of resuming the position of Chief Justice, is reprinted in The Correspondence and Public Papers of John Jay, ed. Henry P. Johnson (New York: G. P. Putnam’s Sons, 1890), 4:284–85. It is cited in Michael J. Klarman’s interesting article, “How Great Were the ‘Great’ Marshall Court Decisions?”Virginia Law Review 87:1111, 1154, n. 226.

1702693162

1702693163 For a recent citation of John Marshall’s famous line about the Court’s “province and duty” to “say what the law is,” see the Supreme Court’s 2008 decision in Boumediene v. Bush, invalidating an act of Congress that stripped the federal courts of jurisdiction to hear cases brought by detainees at Guantanamo Bay. Writing for the majority, Justice Kennedy said that “[t]o hold the political branches have the power to switch the Constitution on or off at will … would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say ‘what the law is’” [citing Marbury].

1702693164

1702693165 For a list of congressional enactments that the Supreme Court has overruled, see the Constitution of the United States, Analysis and Interpretation, published by the Government Printing Office and available on line at www/gpoaccess.gov/constitution/ pdf2002/046.pdf .

1702693166

1702693167 Chapter 2

1702693168

1702693169 The Supreme Court’s Rule 13 provides that petitions for certiorari must be filed within ninety days from the lower court’s entry of“final judgment.” The rule for judicial deference to an agency’s plausible interpretation of an ambiguous statute is set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984). The doctrine is known as “Chevron deference.”

1702693170

1702693171 Chapter 3

1702693172

1702693173 For illustrations and analysis of the ways in which Justices have shifted over time from their original ideological positions, see the article by Lee Epstein and her co-authors, “Ideological Drift Among Supreme Court Justices: Who, When, and How Important?”Northwestern Law Review Colloquy 101 (2007): 127–31. The scholar who identified the presence or absence of prior executive branch experience as predictive of a new Supreme Court justice’s eventual ideological shift was Michael C. Dorf in his article “Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices ‘Evolve’ and Others Don’t?” Harvard Law& Policy Review 1 (2007): 457–76. The six justices in Dorf’s “no experience” group were Blackmun, Powell, Stevens, O’Connor, Kennedy, and Souter. In the “experienced” group were Burger, Rehnquist, Scalia, Thomas, Roberts, and Alito. While this study was concluded very early in the tenures of Roberts and Alito, the author noted that “preliminary evidence indicates that the pattern will also hold” for them. The scholar who examined a nominee’s geographic origin as a factor was Lawrence Baum in his book Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton, NJ: Princeton University Press, 2006). On this topic, see also my article “Change and Continuity on the Supreme Court,” Washington University Journal of Law and Policy 25 (2007): 39–59, which focuses on the example of Harry Blackmun.

1702693174

1702693175 For a detailed account of the effort to impeach Justice Douglas, see David E. Kyvig’s The Age of Impeachment: American Constitutional Culture Since 1960 (Lawrence: University Press of Kansas, 2008).

1702693176

1702693177 On the debate over life tenure for Supreme Court Justices, see Reforming the Courts: Term Limits for Supreme Court Justices, ed. Roger C. Cramton and Paul D. Carrington (Durham, NC: Carolina Academic Press, 2006) and Sanford Levinson’s Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (New York: Oxford University Press, 2006).

1702693178

1702693179 Chapter 4

1702693180

1702693181 Chief Justice Rehnquist was a fan of Gilbert and Sullivan, and his quip about his performance during the Clinton impeachment came from a reference to the House of Lords in one of his favorite Gilbert and Sullivan operettas, Iolanthe.

1702693182

1702693183 The study of the Chief Justice’s multiple duties was presented at a 2005 symposium on “the Chief Justice and the Institutional Judiciary,” sponsored by the University of Pennsylvania Law Review, which devoted its June 2006 issue to the papers presented at the symposium. See Judith Resnik and Lane Dilg, “Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States,” University of Pennsylvania Law Review 154 (2006): 1575–1664.

1702693184

1702693185 The quotation from Salmon Chase is from Alpheus Thomas Mason’s article, “The Chief Justice of the United States: Primus Inter Pares,” Journal of Public Law 17 (1968): 20–60. The later quotation about the “human factor” in a chief justice’s influence is also from this article.

1702693186

1702693187 Justice Kennedy’s letter to Justice Blackmun, and other correspondence among the justices relating to Lynch v. Donnelly, is in Box 586, Folder 6 of the Harry A. Blackmun Collection in the Manuscript Division of the Library of Congress.

1702693188

1702693189 Chief Justice Taft’s article on the Judiciary Act of 1925 was “The Jurisdiction of the Supreme Court Under the Act of February 13, 1925, ” Yale Law Journal 35 (1925): 1–12.

1702693190

1702693191 Chapter 5

1702693192

1702693193 H. W. Perry’s Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, MA: Harvard University Press, 1991) introduced the phrase “defensive denial” into the literature.

1702693194

1702693195 Morse v. Frederick, the case concerning a student’s banner with the puzzling proclamation “Bong Hits For Jesus,” is discussed by Frederick Schauer in his article “Is It Important to Be Important? Evaluating the Supreme Court’s Case-Selection Process, ” Yale Law Journal Online 119 (2009): 77–86. Sanford Levinson’s observations about the “litigated Constitution” versus the “hard-wired Constitution” come from his article “What Should Citizens (As Participants in a Republican Form of Government) Know About the Constitution?” William & Mary Law Review 50 (2009): 1239–60.

1702693196

1702693197 Chapter 6

1702693198

1702693199 Stephen Burbank’s article is “Judicial Independence, Judicial Accountability, and Interbranch Relations,” Georgetown Law Journal 95 (2007): 909–27. Efforts to strip the courts of jurisdiction over controversial issues are described in the leading recent study of the relationship between Congress and the federal judiciary, Charles Gardner Geyh’s When Courts and Congress Collide: The Struggle for Control of America’s Judicial System (Ann Arbor: University of Michigan Press, 2006). The definitive account of congressional responses to the Supreme Court’s statutory rulings in the modern era is an article by William N. Eskridge Jr.,

1702693200

1702693201 “Overriding Supreme Court Statutory Interpretation Decisions,”Yale Law Journal 101 (1991): 331–455.

1702693202

1702693203 The Court’s decision upholding the rights of the Cherokees and provoking Andrew Jackson’s displeasure was Worcester v. Georgia(1832).

1702693204

1702693205 Ledbetter v. Goodyear Tire & Rubber Co., Inc. was overturned by the Lilly Ledbetter Fair Pay Act of 2009, P.L. 111–2, 123 Stat. 5 (2009).

1702693206

1702693207 Chapter 7

1702693208

1702693209 The quotation is from Cardozo’s The Nature of the Judicial Process, originally delivered in 1921 as the Storrs Lectures at Yale and kept in print since then by the Yale University Press. Justice O’Connor’s lecture was published as “Public Trust as a Dimension of Equal Justice, ” Court Review 36 (1999): 10–13. Chief Justice Rehnquist’s comments on public opinion come from a lecture published as“Constitutional Law and Public Opinion,” Suffolk University Law Review 20 (1986): 751–69.

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