Essays

On Mr. Jaworski’s Quarrel with Mr. Nixon

– New York Times (May 23, 1974).
Excerpt: Special prosecutor Leon Jaworski’s complaint to the Senate Judiciary Committee that the White House is threatening his independence naturally reminds everyone of the quarrel the White House picked with Archibald Cox, Mr. Jaworski’s… More

Commentary

– In Watergate, Politics, and the Legal Process. American Enterprise Institute (1974).

Watergate and the Legal Order

– Commentary (January 1974).
Excerpt: Months ago, when the scandals of the Nixon administration were fewer and relatively simpler, there was some self-serving talk of a commonalty of error among the Watergate perpetrators, as the arresting officers might have called them, and the radical… More

What Now?

– New Republic (November 3, 1973).

Civil Disobedience and the Duty to Obey

– Gonzaga Law Review 8, no. 2 (Spring 1973).
Abstract: “At what point,” asks John Rawls in his celebrated recent book, A Theory of Justice, to which I shall make further reference, “does the duty to comply with laws enacted by a legislative majority . . . cease to be binding in view of… More

Citizenship in the American Constitution

– Arizona Law Review 15 (1973).
Abstract: In the view both of the ancients and of modern liberal political theorists, the relationship between the individual and the state is largely defined by the concept of citizenship. It is by virtue of his citizenship that the individual is a member of… More

The Constitution and the War

– Commentary (July 1972).
Excerpt: It is frightening when out of the privacy of the Oval Room or of Camp David a decision emerges to invade Cambodia, bomb Laos or North Vietnam, or, as most recently, mine the harbor at Haiphong and risk a clash with the Russian navy. Made privately,… More

Commentary

– In Federal Regulation of Campaign Finance: Some Constitutional Questions, by Albert J. Rosenthal. Citizen's Research Foundation (1972).

Review of “Justice Joseph Story and the Rise of the Supreme Court”

– New York Times Book Review (May 30, 1971).
Book Review of Justice Joseph Story and the Rise of the Supreme Court, by Gerald T. Dunne (1971). Excerpt: To generations of American lawyers, Joseph Story has been an unavoidable but shadowy figure (shadowy in part because overshadowed by his contemporary,… More

The New Supreme Court: Prospects and Problems

– Tulane Law Review 45, no. 2 (1971).
Excerpt: “The judiciary,” said Hamilton in the 78th Federalist, “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” It… More

Congress, The President, and the Power to Wage War

– Chicago-Kent Law Review 48, no. 2 (1971).
Excerpt: When the Constitutional Convention was debating allocation of the war power within the federal government George Mason of Virginia said that he “was against giving the power of war to the Executive, because not safely to be trusted with it; or… More

Judging the Chicago Trial

– Commentary (January 1971).
Excerpt: Julius Hoffman, Thomas Foran, William Kunstler, Tom Hayden, David Dellinger, Rennie Davis, Bobby Seale, Abbie Hoffman, Jerry Rubin—these are, like Spiro Agnew, household names we owe to the benighted summer of 1968, though we have acquired them… More

On Pornography: Concurring and Dissenting Opinions

– with Stanley Kauffman, Wilson Carey McWilliams, and Marshall Cohen; Public Interest (Winter 1971).
Excerpt: The civil libertarian position on obscenity is that if we forget about it, it will go away. We aren’t told to admire the king’s beautiful cloak. We are told not to care whether he has one on or not. Walter Berns is the little boy who said… More

The Courts: Need for Change

– New York Times (October 22, 1970).
Excerpt: Nothing, at least nothing that is secular, changes more slowly than the ways of courts. Judges are traditionalists, and they ought to be. After all, the continuity of the society’s commitments is substantially in their keeping.

We’ve Shouted Down Our Sense of Balance

– Washington Post (June 14, 1970).
Excerpt: Among academics and other intellectuals, let alone “poets, yeggs and thristies,” it is not merely fashionable, it is required to speak apocalyptically of the country in crisis.

Mr. Taft Rehabilitates the Court

– Yale Law Journal 79, no. 1 (November 1969).
Abstract: Mr. Justice David Josiah Brewer died in March, 1910, after twenty years of service on the Supreme Court. On May 31, 1910, in accordance with a custom almost uniformly observed, there were proceedings in his memory in open court. It was the last day… More

Is Electoral Reform the Answer?

– Commentary (December 1968).
Excerpt: For the first time since the Progressive era of sixty years ago, the American political system may be at a point of significant mutation. The Progressive era gave us women’s suffrage and the popular election of senators, without which the… More

Review of “The End of Obscenity”

– Commentary (November 1968).
Book Review of The End of Obscenity, by Charles Rembar (1968). Excerpt: “Permissive decisions by the Supreme Court in obscenity cases constituted one of the main issues in the struggle over confirmation of Associate Justice Abe Fortas as Chief Justice. So… More

Pornography and the Courts

– Commentary (November 1968).
Review of The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill, by Charles Rembar. Excerpt: “Permissive decisions by the Supreme Court in obscenity cases constituted one of the main issues in the struggle over confirmation… More

Failure of the Warren Report

– Commentary (October 1966).
Excerpt: The Warren Commission (known formally as the President’s Commission on the Assassination of President John F. Kennedy) was born of rampaging suspicions and worldwide controversy. It was charged “to evaluate all the facts and circumstances”… More

Is the Warren Court Too “Political”?

– New York Times Magazine (September 25, 1966).
Excerpt: Earl Warren became Chief Justice of the United States on Oct. 5, 1953, by appointment of President Eisenhower. It was a sudden succession. Chief Justice Warren’s predecessor, Fred M. Vinson of Kentucky, had died unexpectedly that summer.

The Voting Rights Cases

– Supreme Court Review (1966).
Excerpt: Very few statutes can ever have been drafted with a warier eye to the prospect of litigation, or a keener intention to ward it off as long as possible, than the Voting Rights Act of 1965. It was enacted, indeed, as a substitute for litigation, which… More

Justice and Protection

– Mississippi Law Journal 37 (1966).
Excerpt: The problem of law enforcement in the South, or in a current and not inaccurate phrase, “Jim Crow justice,” has come to be symbolized by a number of well-publicized killings in recent years. Medgar Evers, head of the NAACP in Jackson,… More

Review of “Invitation to an Inquest”

– Commentary (January 1966).
Book Review of Invitation to an Inquest, by Walter and Miriam Schneir (1965). Excerpt: United States v. Julius and Ethel Rosenberg wasn’t the Dreyfus, the Mooney, the Sacco-Vanzetti case of the early 1950’s. But much has been written as if it… More

Felix Frankfurter

– Harvard Law Review 78 (1965).
Excerpt: Since the beginning, nearly 100 men have been Justices of the Supreme the Court of the United States. Of these, a dozen–no more–have made their mark, so that their distinctive work is part of the American Constitution. Among the moderns,… More

Much More than Law Is Needed

– New York Times Magazine (August 9, 1964).
Excerpt: If Americans are not convinced that the Civil Rights Act is just and moral, then it will go the way of prohibition and other laws violated, ignored and unenforceable. The first returns on the effective­ness of the Civil Rights Act of 1964 are in.… More

Civil Rights Act of 1964

– Commentary (August 1964).
Excerpt: At a news conference in 1962, John F. Kennedy coined the phrase, “sound public constitutional policy.” It was an entirely original conception, a hybrid of constitutional law and public policy. Constitutional law is produced by the Supreme Court.… More

The Decade of School Desegregation – Progress and Prospects

– Columbia Law Review 64, no. 2 (February 1964).
Excerpt: It is now nearly a decade since the Supreme Court handed down its first opinion in Brown v. Board of Education, the School Segregation Cases. Southern disaffection to the side, there are abroad in the land, by and large, two sets of attitudes about… More

Reapportionment & Liberal Myths

– Commentary (June 1963).
Excerpt: In the decade since Earl Warren became Chief Justice of the United States, the Court over which he presides has embarked on three major enterprises of social reform—a number higher than the historical average for comparable periods, to say the… More

The Durability of Colegrove v. Green

– Yale Law Journal 72 (1962).
Excerpt: A certain tendency to animism affects lawyers when they talk about cases, and they communicate it to interested laymen. Animated cases rise, struggle, and conquer, or are vanquished by, other cases. And so Baker v. Carr is thought to have vanquished… More

Foreword: The Passive Virtues

– Harvard Law Review 75 (1961).
Excerpt: The volume of the Supreme Court’s business is steadily on the rise. It seems to be, quite simply, a direct function of the birth rate. But the number of important and far-reaching issues offered up for decision in any single Term is, in some… More

The Court: An Indictment Analyzed

– New York Times Magazine (April 27, 1958).
Abstract: The American people have always had a consuming and not very sympathetic curiosity about confidential advisers to their high officers of government. The real or supposed influence of such advisers — from Amos Kendall and the other members of… More

Legislative Purpose and the Judicial Process: The Lincoln Mills Case

– with Harry H. Wellington; Harvard Law Review 71, no. 1 (November 1957).
Abstract: Section 3o1 of the Taft-Hartley Act, contend the authors, confers upon the federal courts responsibilities which are beyond the normal institutional capacities of those courts. Thus the proper disposition of Textile Workers Union v. Lincoln Mills,… More

The Original Understanding and the Segregation Decision

– Harvard Law Review 69, no. 1 (1955).
Excerpt: Before setting out on the direct and noble march to the Court’s conclusion in the Segregation Cases, Chief Justice Warren took care to post a rear guard. The history of the adoption of the fourteenth amendment, to which reargument in these… More

Judge and Jury – Inconsistent Verdicts in the Federal Courts

– Harvard Law Review 63 (1950).
Excerpt: A prior conflict among the circuit courts over whether to enter judgment of guilty on one count pursuant to a verdict which is necessarily inconsistent with a verdict of not guilty on another count was settled in 1932 by Dunn v. United States. The… More