| Book Review | Law and History Review, 17.1

Book Review

Division and Discord: The Supreme Court under Stone and Vinson, 1941-1953,

This, the fourth volume in the University of South Carolina Press's series on Chief Justices of the United States Supreme Court, presents an anomaly, which Herbert A. Johnson, the series editor, admits: two "chief justices who, for various reasons, did not exert the leadership of the Court we have come to expect of all who occupy this office" (p. ix). A dubious premise perhaps, but one congenial to Melvin I. Urofsky, who argues that Harlan Fiske Stone was temperamentally unsuited to manage the Court and that Fred M. Vinson was professionally not up to the task. Instead, Urofsky argues that "side justices"—especially Hugo L. Black, William O. Douglas, Felix Frankfurter, and Robert H. Jackson—set the agenda and framed the constitutional debate during the transition period between "the great Constitutional crisis of 1937 and the ascension of Earl Warren" (p. xiii).

The thesis is hardly novel, although Urofsky's claim that the period "is not one that has received a great deal of attention" is puzzling. Stone is the subject of the first modern judicial biography, based on his private working papers, and other justices of the period—Hugo L. Black, Frank Murphy, and Wiley Rutledge—have been subject to similar treatment, with uneven results and depth. Even the Vinson Court's voting records on petitions for certiorari have been published. Numerous articles treat various aspects of the dozen years between the outset of World War II and the appointment of Earl Warren. What Urofsky adds to this rather considerable body of work is a handy account of the Court's performance in nine brisk chapters—"the Stone Court," "the Court at War," "expan[ding] individual rights," "umpir[ing] the federal system," "transition"ing to "the Cold War," measuring the "rights of labor," debating "incorporation and due process," and starting down the "road to Brown [v. Board of Education]." The perspective is largely internal, with frequent quotations from the justices' working papers as well as from Court opinions. Urofsky weaves published biographical work with extensive quotations from the Douglas Papers in the Library of Congress.

The design provides an inside feel to the business of the Court, which is the strength and one of the weaknesses of the story. Gossip and revealing substantive statements stand shoulder to shoulder; old canards from ax-grinding scholars such as Fred Rodell are repeated as if they enjoyed some durability; as he has in some of his other scholarly work on the period, Urofsky emphasizes (as does the book's title) the sulfurous behind-the-scenes exchanges of the justices, but never explains why we should be concerned by rhetorical spleen. In aggregate, the detail—especially from the justices' private correspondence—obscures development of the larger theme. Urofsky sees both the Stone and Vinson Courts as transitional, but it is also arguable that the post-World War II Court—despite false starts and blemishes such as Dennis v. United States (341 U.S. 494 [1951])—began a period of judicial ambition that extended through both Earl Warren and Warren Burger. The Court was willing to adjudicate more and more issues that had been dismissed or addressed episodically before 1945. The credit belongs to Black, who forged a strong alliance within the Court and attracted, sometime by design, scholarly approval outside the Court. The theoretical force field was already in place—and activated—by the time Earl Warren took the center chair.

In fairness, neither this volume nor the series is designed to explore questions larger than what happened during a specific period (although periodizing by the tenure of Chief Justices now seems somewhat quaint, as the volume itself emphasizes). The result is that the South Carolina series serves as an echo to the more ponderous and imposing Oliver Wendell Holmes Devise History of the Court, which also is organized largely by Chief Justiceship. As a service to students especially, the junior series is welcome, as is the pace of production, which only underscores how shamefully slow the Holmes Devise has been in getting its books on the shelves. There is a price to speed in publishing, of course, and several embarrassing errors eluded the proofreaders: Douglas, not Joseph Story, becomes "the youngest person ever appointed to the Supreme Court" (23), Benjamin N. Cardozo is also "Cardoza" (186), and Heman Sweatt—the plaintiff in the NAACP suit against Texas's Jim Crow law school in 1950—becomes "Herman" (254, 298). There are two indexes and a comprehensive, up-to-date bibliography; fourteen manuscript collections and oral history collections are listed, although the Vinson Papers, the Reed Papers (both at the University of Kentucky's King Library), and the Tom C. Clark Papers (University of Texas at Austin School of Law's Tarlton Library) are not among them. Neither the Vinson nor Reed Papers would have added much to Urofsky's story, but the Clark Papers rank with those of Burton and Douglas in richness. More detail is not, however, what the book needs or what the series is sensibly designed to provide.

Dennis Hutchinson

University of Chicago

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