Urofsky - Supreme Decisions, Combined Volume

Volume 1:

For my children

Philip and Melissa, Robert and Leslie

And for their children

Volume 2:

For my grandchildren

Emma, Chloe, and Aaron

And for their parents

Combined Volume:

For my children, my grandchildren,

and as they requested,

for all the pooches as well

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Supreme decisions: great constitutional cases and their impact (volume 1, volume 2, combined volume), Melvin I. Urofsky

Paperback ISBNs: Volume 1: To 1896: 978-0-8133-4731-8; Volume 2: Since 1896: 978-0-8133-4733-2; Combined Volume: 978-0-8133-4735-6 (alk. paper)

E-book ISBNs: Volume 1: To 1896: 978-0-8133-47325; Volume 2: Since 1896: 978-0-8133-4734-9; Combined Volume: 978-0-8133-4736-3

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I would like to thank the reviewers whose feedback on the manuscript was so helpful, including:

Robert Allison, Suffolk University

Gordon Bakken, California State University, Fullerton

Elizabeth Dale, University of Florida

Thomas J. Davis, Arizona State University, Tempe

Sally Hadden, Western Michigan University

Eric R. Jackson, Northern Kentucky University

Patricia Minter, Western Kentucky University

Yvonne Pitts, Purdue University

Richard Polenberg, Cornell University

John C. Putman, San Diego State University

John E. Semonche, University of North Carolina [retired]

Christopher Waldrep, San Francisco State University

Laura Wittern-Keller, University of Albany

T ODAY ALL OF US RECOGNIZE that the Supreme Court plays an important part in our daily lives, as it defines what rights belong to the citizens of this country, what Congress and state legislatures can and cannot do, how far presidential authority extends, and what is the proper balance between the powers of the national government and those of the states. But when George Washington took the oath of office in 1789 as the first president under the Constitution, he had difficulty finding men to serve as justices of the Supreme Court that Congress had created. During its first decade, although the Court handed down some important decisions, few people in the country thought of the judicial arm as a coequal partner in the national government, comparable to the executive or legislative branch. The first chief justice of the United States, John Jay, resigned to become governor of New York, and Associate Justice John Rutledge left to become chief justice of South Carolina. The constitutional declaration in Article III that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish, seemed to many an afterthought.

That, of course, changed when John Marshall became chief justice in 1801. Just as Washington had clothed the bare-bones description of the presidency with the flesh and blood of practice, so Marshall gave life to some of the key phrases of the Constitution, and in doing so made the Supreme Court not only a significant player in the affairs of the national government but also the final arbiter of what the Constitution means. For more than 210 years it has been what the Court says that has influenced major trends in our historical development, and has defined the important phrases in the Constitution. We understand what interstate commerce, freedom of speech, and equal protection of the law mean because of what the Court has said.

Each generation of Americans brings new questions before the courts, and the flexibility that the Framers built into the Constitution has allowed it to respond to issues that the founding generation never even imagined. Sometimes the decisions have been controversial, and there have been some false starts. But for the most part, the justices have done a good job of reading the words of an eighteenth-century document to cover the contingencies raised in the ensuing decades.

Although the U.S. Supreme Court is one of the most powerful constitutional courts in the world, it can only decide those issues that come within its jurisdiction. In the early nineteenth century the French traveler Alexis de Tocqueville declared that in the United States all important political questions ultimately wind up as judicial questions. But the justices cannot just reach out and decide an issue; they must wait until a case or controversy is properly brought before them, and then they carefully weigh just which questions they wish to answer.

These cases and controversies are not abstract, and they involve real peoplethe men and women who brought the issues into the courts to begin withpeople like William Marbury challenging the authority of a president, Dred Scott claiming to be free, and Myra Bradwell believing that women ought to be allowed to practice law. In more modern times we find Jacob Abrams arguing that the First Amendment gave him a right to voice unpopular opinions, Lillian Gobitas refusing to salute the flag because of her religious beliefs, and Oliver Brown wanting his daughter Linda to go to a desegregated school.

When I studied constitutional history in graduate school, and later on in law school, the emphasis was on the case holding. In this case the Court decided that a particular clause of the Constitution meant a certain thing, and therefore the statute in question was either constitutional or not. We never met the litigants, other than in one or two sentences at the beginning of the opinion setting out how the case began. One could read through such famous decisions as Marbury v. Madison (1803), Plessy v. Ferguson (1896), Olmstead v. United States (1928), and Roe v. Wade (1973) and know absolutely nothing about William Marbury, Homer Plessy, Roy Olmstead, and Norma McCorvey (Jane Roe). Who were these people? What were the circumstances that brought their cases into court? What were the larger social, economic, and political developments that lay behind their cases?