Journal of Supreme Court History

Controversy and the Court have always gone hand in hand. The late David O’Brien, a renowned political scientist, titled his classic text Storm Center: The Supreme Court in American Politics for a reason. That book, a staple of the undergraduate curriculum for more than three and a half decades, reminded readers that because the Court draws the most tempestuous constitutional questions to its docket, some degree of turmoil—rather than tranquility—has resulted from its decisions from the beginning. The whole of Supreme Court history teaches us that disagreements among the justices often reflect larger societal rifts on the hard questions confronting the country. And sometimes even unanimous agreement among the justices, as in Brown v. Board of Education, sparks wide scale public opposition and disagreement. Thankfully, the Court’s legitimacy does not rest on the outcome of any one decision or on the decisions delivered in any single Term. Instead, the Court’s authority has developed over time, relying as it does on Americans’ civic knowledge, on the people’s commitment to the Constitution, and on our shared understanding of the Court’s role within the American constitutional order. In polarized times such as these, studying Supreme Court history can provide perspective, including the ability to understand the shifts that have recently altered the constitutional landscape.

This issue of the journal certainly offers plenty of perspective. Rachel Shelden shows that the justices and public perception of their work are less political today than they were than during the 19th century. Her terrific essay explores not only the presidential campaign of 1848, in which two sitting justices were potential candidates, but also the fluid relationship between the justices and the political realm during the 19th century. It is worth noting that the idea of a professionalized Court—with federal judicial experience as a virtual prerequisite for appointment as a justice—is a relatively recent phenomenon. Shelden is an associate professor of history at Penn State and the Director of the George and Ann Richards Civil War Center.

As Justice Ketanji Brown Jackson serves her inaugural term on the Court, two essays offer insights into the Black freedom struggle, including the role of African American advocates and litigants. John G. Browning’s fascinating article offers a look at the first Black lawyer to argue a case before the Court, Everett J. Waring of Baltimore. Waring participated in Jones v. United States, a [End Page 239] little known 1890 case involving Black labor, murder, and the constitutional status of the Caribbean island of Navassa. Browning, a partner at Spencer Fane in Plano, Texas, is Distinguished Jurist in Residence and Professor of Law at Faulkner University and has served as an appellate justice on the Texas Fifth District Court of Appeals. Charles Sheehan, meanwhile, presents a sweeping account of the quest to desegregate public accommodations in the nation’s capital. Sheehan focuses on D. C. v. Thompson Restaurant, a case in which Mary Church Terrell figured prominently. Born in 1863, the year of the Emancipation Proclamation, Terrell died in 1954, a year after winning the Thompson case and the same year as Brown v. Board of Education. Her remarkable life spanned decades of important change in the constitutional status of African Americans. Sheehan served as an attorney in the Department of Justice.

Finally, Andrew Meek’s article sheds light on the always relevant question of the definition and limits associated with privacy. Providing appropriate doses of historical background and doctrinal analysis, Meek explores the 1985 landmark case, New Jersey v. T.L.O., which involved the application of the Fourth Amendment to school officials’ searches for drugs. Meek, who received his J.D. in 2021 from George Washington University Law School, notes the decision’s significant impact on shaping policy on school searches not only for drugs but also for weapons.

Our ongoing efforts to publish the most engaging scholarship on the history of the Supreme Court involve the labor of many, including the members of our Board of Editors. I am grateful to all of them. Our Board not only helps us to solicit submissions, it also assists with other tasks, such as reviewing books. In this...