Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P37 pps

writing for the Court, acknowledged that the plight of the Cherokee and other Native American tribes was real: They were “gradually sinking beneath our superior policy.” The Court, however, could not base its analysis on sympathy. Marshall concluded that before the merits of the Cherokee case could be considered, the Court had to determine whether it had jurisdiction to hear the case at all. The Cherokee argued they were a foreign state, pointing out that the tribe was a distinct politic al society that managed its own affairs, and that both the colonial and U.S. governments had regarded them as a state. The fact that the federal government negotiated treaties with the Chero- kee seemed to be good evidence that the tribe was regarded as a foreign state. The Court rejected these claims. Marshall stated that the Cherokee tribe was not a foreign state “in the sense of the Constitution” since the Indian Territory was located inside the geo- graphical and jurisdictional boundaries of the United States. Moreover, the Cherokee had acknowledged, in the very treaties in question, that they were under the protection of the United States. Therefore, a better classification for the Cherokee and other Native American tribes was that of “domestic dependent nations.” The Court noted that the Constitution was silent on the issue of permitting the federal courts to hear disputes between states and Indian nations. Chief Justice Marshall found that the COMMERCE CLAUSE empowers Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” This clause clearly distinguished between foreign nations and Native American tribes, making them distinct entities. The relation between the tribes and the United States resembled that of a ward and his guardian rather than of coequal states. Based on this analysis the Supreme Court dismissed the case for lack of jurisdiction. The Cherokee returned to the Supreme Court the following year in Worcester, and this time had the opportunity of arguing the merits of the case. The issue in question involved Georgia legislation, which made it a crime for white persons to live in Cherokee country without first obtaining a license from the state. The state of Georgia indicted Samuel A. Worcester, a missionary of the American Board of Commissioners for Foreign Missions, and six other white persons for the offense of “residing within the limits of the Cherokee nation without a license.” All seven defendants were convicted and sentenced to four years in pris on. Worcester and the other defendants appealed to the Supreme Court, arguing that Georgia had no jurisdiction over Cherokee sovereign territory. Under the Constitution, Congress has the power to regulate commerce with Native American tribes. The Indian Commerce Clause (Article I, Section 8, Clause 3) is the main source of federal power over Native American tribes. Worcester contended that this clause demonstrated that the federal government had exclusive jurisdiction over the establishment and regulation of intercourse with Native Americans. In addition, Worcester pointed to treaties between the United States and the Cherokee nation. No state could interfere with these agreements, which were the supreme LAW OF THE LAND. Chief Justice Marshall, writing for the majority, agreed with Worcester’s legal position and found that the relationship between the existing treaties and the constitutionality of the state law were the paramount issues. Marshall reviewed the colonizing of the continent and noted that the colonists’ legal basis for claiming the land as their own was questionable: It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discov- ered, which annulled the pre-existing rights of its ancient possessors. Marshall analyzed two treaties negotiated between the United States and the Cherokee. He found that these agreements recognized the national character of the Cherokee and their right of self-gov ernment. In addition, the treaties guaranteed their lands, and the federal government assumed the duty of protecting the integrity of the agreement. Marshall then pointed out that from the beginning of the Republic, Congress had enacted a series of laws to regulate trade and intercourse with Native American tribes. These laws treated the tribes as nations, respected their rights, and sought to give the tribes the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 348 CHEROKEE CASES protection that the treaties stipulated. He concluded that “Indian nations are distinct political communities, having territorial bound- aries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.” In light of Cherokee Nation, a key question was whether a treaty negotiated with Native Americans should be treated differently than one negotiated with a foreign nation. Marshall concluded that it should not: The words “treaty” and “nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense. Therefore, Marshall ruled that the Cherokee nation was a “distinct community occupy ing its own territory,” where the laws of Georgia had no force. The Cherokee were vested with the power to determine whether the citizens of Georgia could enter their territory, subject to treaty provisions and acts of Congress. He concluded that “the whole intercourse between the Unite d States and this nation, is, by our constitution and la ws, vested in the government of the United States.” The decisions involving the Cherokee na- tion established the basic principles of Native American sovereignty. Native American tribes, by occupying North America, possessed some elements of preexisting sovereignty. This sover- eignty could be diminished or eliminated by the United States, but no t by the individual states. Finally, because the tribes had limited sover- eignty and were dependent on the United States for protection, the United States had a trust responsibility. This meant that the U.S. govern- ment was a trustee with the duty of looking after the best interests of Native Americans, who were wards of the government. The legal victory proved of little benefit to the Cherokee nation, however. The demand for land in Georgia grew more intense after gold was discovered on Cherokee land. More ominously, President ANDREW JACKSON,who favored the removal of the Cherokee nation and other Native American tribes, refused to enforce the Court’s decision. His refusal illustrated the problem that occurs when one branch of government refuses to honor the decision of another branch. During Jackson’s term of office (1829–37), 94 removal treaties were negotiated, demonstrating his resolve to move Native American tribes westward. In Decembe r 1835 the Treaty of New Echota, signed by a small minority of the Cherokee, ceded to the United States all their land east of the Mississippi River for $5 million. Though the tribe sought to repudiate the treaty, they were unsuccessful. Under the Indian Removal Act, the Cherokee were forced to leave Georgia beginning in 1838. Nearly a quarter of the 15,000 Cherokee died during the relocation. The Cherokee called the western trek to Oklahoma and Indian Territory the Trail of Tears. FURTHER READINGS Berutti, Ronald A. 1992. “The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Indians.” American Indian Law Review 17 (spring). McBride, Alex. 2006. “Supreme Court History: The First Hundred Years, Landmark Cases,” New York: Edu- cational Broadcasting Corporation. Available online at http://www.pbs.org/wnet/supremecourt/antebellum/ landmark_cherokee.html website home page: http:// www.pbs.org (accessed August 30, 2009). Norgren, Jill. 1996. The Cherokee Cases: The Confrontation of Law and Politics. New York: McGraw-Hill. CROSS REFERENCES Native Ame rican Rights; “Worcester v. Georgia” (Appe ndix, Primary Document). CHESSMAN, CARYL The execution of Caryl Chessman in the gas chamber of San Quentin Prison on May 3, 1960, ended a 12-year struggle between Chessman and the justice system that culminated in international rage at the treatment of the prisoner. Caryl Whittier Chessman was born May 27, 1921, in St. Joseph, Michigan. In 1948 Chessman was a 27-year-old parolee from Folsom Prison in California when he was arrested in Los Angeles as the prime suspect in the “red light bandit” incidents. The MODUS OPERANDI of the bandit was distinctive: He stalked desolate areas known to be popular with couples seeking a place to park and be alone. The bandit would walk toward a parked car carrying a red light similar to that used by police, and then ASSAULT the unsuspecting occupants of the car. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHESSMAN, CARYL 349 Chessman initially confessed to the crimes but later claimed that he was tor tured into confessing. He professed his innocence but was indicted on 18 sep arate counts, including KIDNAPPING, ROBBERY, sexual mistreatment, and attempted RAPE. Two of the charges carried a mandatory death sentence in California, based on the passage of the “Little Lindbergh” law in 1933 in response to the heinous kidnapping and MURDER of the infant son of aviator Charles Lindbergh and poet Anne Morrow Lindbergh. The law required CAPITAL PUNISHMENT for a kidnapping in which the victim was inflicted with physical harm. The trial lasted two weeks, and Chessman served as his own counsel, aided by an attorney provided by the court. The jury returned a VERDICT of guilty on 17 of the charges, including those imparting the death sentence. Chessman was transferred to San Quentin Prison in California pending an appeal to the state supreme court. The court affirmed the decision, and Chessman was sent to cell 2455 on death row to await his execution scheduled for March 28, 1952. Chessman appealed his case on the grounds that he was not granted DUE PROCESS OF LAW.He based his appeal on the fact that the transcript of his trial was inaccurate. The original COURT REPORTER had died suddenly, leaving two -thirds of the TESTIMONY to be transcribed. Chessman argued that the new reporter did not accurately decipher the old-style shorthand used by his predecessor. Chessman had also requested daily transcripts of the testimony, but this request was denied. Chessman’s PLEA was rejected, and during the next 12 years he submitted his appeal 42 times before various federal and state appellate courts, including the SUPREME COURT OF THE UNITED STATES . He remained on death row for 12 years, during which he wrote several books describing his life there. He was sched- uled to face the gas chamber on nine separate occasions, but he always received a reprieve before the execution. Chessman argued that his predicament was an example of CRUEL AND UNUSUAL PUNISHMENT, which violated his constitutional rights. The case began to attract international and political attention and at one point, Governor Edmund Brown of California called for a stay of execution by order of the STATE DEPARTMENT to ensure a peaceful tour of South America by President DWIGHT D. EISENHOWER. Time was running out for Chessman by 1960. Although his lawyers claimed to have found new evidence in favor of their client, the courts denied a plea for a WRIT of HABEAS CORPUS. He was again scheduled fo r execution in May 1960. Protests were heard from several coun- tries and famous people, including Aldous Huxley and Albert Schweitzer. Despite these efforts, Chessman was executed on May 3, 1960. The death of Caryl Chessman incited a w ave of anti-American sentiment with protests in several countries. FURTHER READINGS “Caryl Chessman, the Red-Light Bandit.” Los Angeles: USC Library. Chessman, Caryl. 2006. Cell 2455, Death Row: A Condemned Man’s Own Story. New York: Da Capo. Hamm, Theodore. 2001. Rebel and a Cause: Caryl Chessman and the Politics of the Death Penalty in Postwar California, 1948–1974. Berkeley: Univ. of California Press. CROSS REFERENCES Lindbergh Kidnapping; Capital Punishment. CHICAGO EIGHT The trial of the Chicago Eight exemplified the state of turmoil that existed in the United States in 1968. Because the Chicago CONSPIRACY trial opened with eight defendants, this group of Caryl Chessman. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 350 CHICAGO EIGHT radical leaders is sometimes referred to as the Chicago Eight. The trial of one DEFENDANT, Bobby Seale, was severed from that of the other seven; hence the name Chicago Seven is a name also used to refer to this trial. The assassinations of Senator ROBERT F. KENNEDY and Dr. MARTIN LUTHER KING Jr., occurred within months of each other. The escalation of the VIETNAM WAR was unpopular with many U.S. citizens and a number of young men of draft age burned their draft registration cards or fled to Canada rather than risk their lives for a cause in which they did not believe. Protest demonstrations were prevalent. The turbulence in the United States culminated in events at the Democratic Presidential Con- vention in Chicago, Illinois, which led to a sensational courtroom trial. Chicago was controlled politically by Mayor Richard J. Daley and his Democratic followers. When Chicago was chosen as the site for the Democratic Convention, groups of protestors decided to seize the opportunity to converge on that city to stage demon strations and publicly espouse their views against U.S. participation in the Vietnam War. The protestors arrived from all over the nation, establishing a camp at Lincoln Park. Mayor Daley was opposed to any incident that might cause a disturbance of the conven- tion proceedings and taint the reputation of the city of Chicago. The demonstrators were denied a permit to assemble in Lincoln Park and were told to disband. When they refused the Chicago police tried to forcibly eject them from the park. When these efforts failed the police used tear gas and billy clubs. A RIOT resulted, and as news of the Chicago violence reached the nation, other groups went to Chicago to join the protestors. When the number of demonstrators reached 20,000, the NATIONAL GUARD was enlisted to quell the violence. Eight radical leaders emerged as the organizers of the demonstration movement: Tom Hayden and Rennie Davis, who had established the group known as Students for a Democratic Society, or SDS; Abbie Hoffman and Jerry Rubin, founders of the Youth International Party, or “Yippies”; Bobby Seale, leader of the BLACK PANTHER PARTY; David Dellinger, staunch opponent of the Vietnam War and renowned pacifist; and John Froines and Lee Weiner, two teachers. In 1968 Congress enacted legislation prohi- biting conspiracies to cross state boundaries with the intent of inciting a riot. The eight men were brought to trial at the Federal Court Six members of the Chicago Eight at a 1970 press conference: (seated, l-r) Rennie Davis, Jerry Rubin, and Abbie Hoffman; (standing, l-r) Lee Weiner, Bob Lamb, and Thomas Hayden. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CHICAGO EIGHT 351 Building in Chicago in 1969 and were accused of breaking this new law. The trial evoked a number of controversial issues. The purpose of the protest was to air the views of the participants against the Vietnam War. The blame for the ensuing riots, however, could not be clearly placed on the demonstra- tors or on the actions of the police to disband them. Whereas the Constitution provides for the basic freedoms of speech, protest, and assemblage, the terms of the new law— particularly concerning the actual act of con- spiring to riot—were not clearly defined in relation to these rights. Federal district court judge Julius J. Hoffman was selected to try the case. The U.S. attorney for the prosecution for Illinois was Thomas Foran. A number of defense lawyers were retained, but the two most prominent were WILLIAM KUNSTLER and Leonard Weinglass. Armed protection was provided at the court building to discourage disturbances. Judge Hoffman proved to be a difficult man. Four defense lawyers notified the judge by telegram that they had decided to withdraw from the case; Hoffman charged them with CONTEMPT of court for not informing him personally of their intentions. The charges were eventually dropped but not before protests from lawyers all over the nation were filed. Bobby Seale’s lawyer became ill, and Seale asked for either a delay of his trial until his lawyer could participate or permission to defend hims elf. Hoffman denied both requests. The prosecution began by stating three charges against the Chicago Eight: (1) they had persuaded people to travel to Chicago for the purpose of joining protest demonstrations; (2) they had influenced their followers to defy law enforce ment officials; and (3) they had encouraged a riot. The defense attorneys countered that the actions of the demonstrators were in accordance with the basic freedoms granted by the Constitution. Police informants were called as witnesses for the prosecution. Bobby Seale asked to be allowed to cross-examine the witnesses, and again the argument flared between Seale and Hoffman as to Seale’s rights to representation by counsel. The other defendants voiced agita- tion during the early days of the trial, but exchanges between Bobby Seale and Judge Hoffman were particularly vehement, and Hoffman had Seale handcuffed to a chair and gagged. Hoffman claimed that the court had the right to employ this tactic, but it was the first time it had been utilized during a trial of any consequence in the United States. Seale still found ways to interrupt the proceedings, and Hoffman declared a MISTRIAL in Seale’s case and imposed on Seale sentence of four years for contempt of court. The seven remaining defendants and their lawyers became enraged; the trial became a shouting match between all involved, with insults being flung at the judge by the defendants. Hoffman began ruling in favor of motions presented by the prosecution and against those for the defense. The trial came to a close on February 14, 1970. As the jury deliberated, Hoffman charged all the defendants and attorneys Kunstler and Weinglass with contempt of court and passed sentences ranging from 2 months 8 days, to 29 months 13 days. Kunstler, however, received the longest sentence of 4 years 13 days. Judge Hoffman also refused to permit BAIL. The jury finally reached a VERDICT. The seven defendants were cleared of conspiracy charges, but five of them were found guilty of crossing state boundaries to incite a riot and were given prison sentences of five years and fined $5,000. Defendants Froines and Weiner were acquitted of all charges. The Chicago Eight appealed to higher courts, which resulted in granting of bail, a reversal of all contempt charges—including those of the two lawyers—and a new trial for the convicted five. The proceedings of the new trial were private and lacked the sensationalism of the earlier hearings, and although the defendants were again found guilty, their sentences were suspended. FURTHER READINGS Babcox, Peter, and Deborah Babcox, eds. 1969. The Conspiracy: The Chicago Eight Speak Out! New York: Dell. Dellinger, David. 1993. From Yale to Jail. New York: Pantheon. Epstein, Jason. 1970. The Great Conspiracy Trial: An Essay on Law, Liberty, and the Constitution. New York: Random House. Hayden, Tom. 1989. Reunion: A Memoir. New York: Collier. ———. 1970. Trial. New York: Holt, Rinehart & Winston. Schultz, John. 2000. “The Substance of the Crime Was a State of Mind—How a Mainstream, Middle Class Jury Came To War With Itself” UMKC Law Review 68 (summer). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 352 CHICAGO EIGHT CROSS REFERENCES Freedom of Association and Assembly; Freedom of Speech; Right to Counsel. CHICAGO JURY PROJECT The Chicago Jury Project was an investigation of the role and functions of the jury in the U.S. legal system. The inquiry was conducted by the University of Chicago Law School with funding from the Ford Foundation. Its primary goal was to join the social scientist and the lawyer in a working relationship in which they could share their unique skills and experie nces with each other, along with amassing pertinent data to answer some interdisciplina ry questions, in order to create new ideas and theories in their respective fields. The topics to be studied included the differences between the roles of the judge and the jury; the jury’s determination of the issue of insanity when it is asserted as a defense; the influence of the existence of insurance upon the minds of the jurors when deciding a case; and the jury’s comprehension of, and attitude toward, the concept of contributory NEGLIGENCE in jurisdictions where it was law. The method- ology by which such information was gleaned included personal conversations with jurors after the conclusion of trials as well as questionnaires. The rationales underlying the processes by which jurors were selected and examined on VOIR DIRE were additional subjects of study. The views of the general public and members of the legal profession regarding juries were solicited. There was also an examination of the costs inherent in the operation of the jury system. The Chicago Jury Project encountered one problem as a result of the techniques used in collecting data. With the permission of the presiding judge and counsel, the staff made recordings of the deliberation of jurors in five civil cases brought to trial before the federal district court sitting in Wichita, Kansas. Such recordings were to be used in determining whether interviews conducted with jurors after a trial accurately described the events occurring in the jury room. The jurors were not, however, informed of the recordings. When it was revealed that such recordings were made, the attorney general of the United States publicly censured the project and the SENATE JUDICIARY COMMITTEE convened a special hearing to investigate such unorthodox and questionable research methods. State legislatures responded to such disclosures by enacting statutes pro- scribing the recording of jury deliberations. The findings of the Chicago Jury Project are discussed in the books Delay in the Court and The American Jury, published in 1959 and 1966, respectively. CHICAGO SCHOOL Among contemporary movements in U.S. law, few have had as much influence as the Chicago school. This school of thought helped revolu- tionize legal thinking on economics from the 1970s to the 1980s. At the heart of its philosophy is the idea that economic efficiency should be the goal of national policy and law. This argument left its mark, in particular, in the area of antitrust, where the Chicago school swayed the U.S. Supreme Court for more than a decade. Although they received less atten- tion in the 1990s than they had earlier, the school’s leaders continued to rank among the preeminent—and more controversial—figures on the legal landscape. The Chicago school takes its name from the University of Chicago, with which most of its core proponents were all affiliated at one time. These include Professor Ronald H. Coase, Judge Frank H. Easterbrook, Professor Richard A. Epstein, Professor Daniel R. Fischel, Judge RICHARD A. POSNER, and Judge Ralph K. Winter Jr. ROBERT H. BORK, another prominent member, was a professor at Yale. The early work of the Chicago school, produced in the 1960s, built on scholarship by Professor Aaron Director. Direc- tor’s specialty had been antitrust, the area of law that addresses UNFAIR COMPETITION in business. Antitrust has a long history, in which ideas have come and gone. Through the late 1960s, the U.S. Supreme Court took a harsh view of restraints on trade. The Court ruled that certain anticom- petitive practices were per se illegal—so harmful to competition that they need not even be evaluated on a case-by-case basis. The Chicago school urged the Court to take another look. Scholars of the school praised economic efficiency. If they could show, for instance, that certain restraints on trade were actually a result of efficient competition, then why should these practices be considered illegal by courts? Underlying this view was the contention that markets could take care of themselves without the need for heavy regula- tion. It was not long before the Chicago school’s GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHICAGO SCHOOL 353 ideas began to influence the Supreme Court. In 1977 the Court abandoned its reliance on per se rules in Continental T.V. v. GTE Sylvania, 433 U.S. 36, 97 S. Ct. 2549, 53 L. Ed 2d 568, and turned instead to a rule of “reason,” opening a new era in ANTITRUST LAW. Throughout the 1970s the Chicago school continued to refine its economic theory in numerous essays and treatises such as Posner’s Antitrust Law (1976) and Robert H. Bork’s The Antitrust Paradox (1978), both of which attacked the idea that big business is necessarily bad. The school argued that an unrestricted market, in which producers and consumers acted freely, will operate rationally and efficient- ly all by itself. The hands-off implications of this picture had broad significance for corporate law and national policy. Chicago school theory influenced the Reagan administration’s attack on government regulation. President RONALD REAGAN appointed several Chicago school members to the federal bench: Posner in 1981 to the Seventh Circuit, Winter in 1982 to the Second Circuit, and Easterbrook in 1985 to the Seventh Circuit. Bork, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was nominated to the U.S. Supreme Court in 1987. However, widespread protest over his views led the U.S. Senate to block his confirmation. In the 1990s the Chicago school continued to provoke lively debate. Bork, despite resigning from the judiciary in 1988 following his failed nomination to the Supreme Court, attracted attention with publications such as his 1990 book The Tempting of Americ a: The Political Seduction of the Law. But in the area of antitrust, at least, the heyday of the school’s influence was over. For years, the Chicago school’s theory had been undergoing a reevaluation, with critics questioning its faith in government noninter- vention. FURTHER READINGS Katz, Ronald S., and Janet S. Arnold. 1993. “Kodak v. Image Technical Services: Downfall of the Chicago School of Antitrust Economics.” American Law Institute (January 21). Posner, Richard A. 1975. “The Economic Approach to Law.” Texas Law Review 53. Protos, Jill Dickey. 1993. “Kodak v. Image Technical Services: A Setback for the Chicago School of Antitrust Analysis.” Case Western Reserve Law Review (spring). Rosenthal, Douglas E. 1993 . “Reevaluating the Chicago School Paradigm for Promo ti ng Innovati on and Competitiveness.” Canada–United States Law Journal 19. Simpson, Alexander G. 1993. “Shareholder Voting and the Chicago School: Now Is the Winter of Our Discontent.” Duke Law Journal 43 (October). CHIEF JUSTICE The presiding, most senior, or principal judge of a court. Although the office of the chief justice of the SUPREME COURT OF THE UNITED STATES is a prestigious position, the functions and powers of the chief justice are not well-defined. The U.S. Constitution contains only one mention of the chief justice, in Article I, Section 3, and it concerns the IMPEACHMENT of the president: “When the PRESIDENT OF THE UNITED STATES is tried, the Chief Justice shall preside.” The JUDICIARY ACT OF 1789, which created the Supreme Court, specified only “[t]hat the supreme court of the United States shall consist of a chief justice and five associate justices” (1 Stat. 73). As a result, each indiv idual who has occupied the post has had the freedo m to shape and define the role. Like the associate justices of the Supreme Court, the chief justice is appointed for life by the president but must first be confirmed by the Senate. Prior service on the Court is not required, though several chief justices, including HARLAN F. STONE and WILLIAM H. REHNQUIST,servedas associate justices before becoming chief justice. Many chief justices served in other branches of government before joining the Court: JOHN MARSHALL and ROGER B. TANEY were cabinet members, EDWARD D. WHITE was a U.S. senator, and EARL WARREN was governor of California. Other chief justices came to the Court as judges from lower federal and state courts or practiced law prior to their appointments. The chief justice’s primary duty is to preside over all Supreme Court proceedings, both those open to the public and those held in private. The chief justice traditionally opens and closes the public sessions in which the Court hears oral arguments. He or she wields the most influence in closed-door proceedings. The chief justice determines which decisions the Court will discuss in conferences where the justices choose the cases they will accept for review. The chief justice also leads the private discussions on cases recently argued. After presenting the facts and issues in such a case and the relevant law, the chief justice states her or his conclusions GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 354 CHIEF JUSTICE and casts a vote. The discussion continues in order of seniority, with each associate justice presenting her or his views and vote. If the chief justice is in the majority after voting has concluded, he or she assigns the writing of the opinion in the case. This critical responsibility provides the chief justice with an important opportunity to influence the out- come of the case, since he or she can assign the case to a justice who he or she believes has Succession of Supreme Court Justices This table is designed to aid the user in identifying the succession of justices on the Supreme Court. Read vertically, the table lists the succession of justices in each position of the Court and the years served by each. The number of justices constituting the Supreme Court has varied. Initially, the Court comprised six justices, but Congress increased the number to seven in 1807, to nine in 1837, and then to ten in 1863. In 1866, Congress reduced the number of justices to eight in an effort to prevent President Andrew Johnson from making any appointments to the Court. As a result, the positions of John Catron, who died in 1865, and James M. Wayne, who died in 1867, were abolished. In 1869, Congress raised the number of justices to nine, where it has remained. William Strong, the first justice appointed under the new statute, has generally been considered to have succeeded Wayne. Thus, Catron is the only person who has held the tenth seat on the Court. Chief Justices Associate Justices Jay 1789–1795 J. Rutledge a 1795 Ellsworth 1796–1799 J. Marshall 1801–1835 Taney 1836–1864 S. P. Chase 1864–1873 Waite 1874–1888 Fuller 1888–1910 E. White b 1910–1921 Taft 1921–1930 Hughes 1930–1941 Stone c 1941–1946 Vinson 1946–1953 Warren 1953–1969 Burger 1969–1986 Roberts 2005– Rehnquist g 1986–2005 J. Rutledge 1789–1791 T. Johnson 1791–1793 Paterson 1793–1806 Livingston 1806–1823 Thomson 1823–1843 Nelson 1845–1872 Hunt 1873–1882 Blatchford 1882–1893 E. White d 1894–1910 Van Devanter 1911–1937 Black 1937–1971 Powell 1971–1988 Kennedy 1988– Cushing 1789–1810 Story 1811–1845 Woodbury 1845–1851 Curtis 1851–1857 Clifford 1858–1881 Gray 1882–1902 Holmes 1902–1932 Cardozo 1932–1938 Frankfurter 1939–1962 Goldberg 1962–1965 Fortas e 1965–1969 Blackmun 1970–1994 Breyer 1994– Wilson 1789–1798 Washington 1798–1829 Baldwin 1830–1844 Grier 1846–1870 Bradley 1870–1892 Woods 1881–1887 L. Lamar 1888–1893 H. Jackson 1893–1895 Peckham 1895–1909 Lurton 1910–1914 McReynolds 1914–1941 Byrnes 1941–1942 W. Rutledge 1943–1949 Minton 1949–1956 Brennan 1956–1990 Souter 1990–2009 Sotomayor 2009– Harrison f 1789 Blair 1789–1796 S. Chase 1796–1811 Duvall 1812–1835 Barbour 1836–1841 Daniel 1841–1860 Miller 1862–1890 Brown 1891–1906 Moody 1906–1910 J. Lamar 1911–1916 Brandeis 1916–1939 Douglas 1939–1975 Stevens 1976– Iredell 1790–1798 Moore 1799–1804 W. Johnson 1804–1834 Wayne 1835–1867 Strong 1870–1880 Shiras 1892–1903 Day 1903–1922 Butler 1922–1939 Murphy 1940–1949 Clark 1949–1967 T. Marshall 1967–1991 Thomas 1991– Todd 1807–1826 Trimble 1826–1828 McLean 1829–1861 Swayne 1862–1881 Matthews 1881–1889 Brewer 1889–1910 Hughes 1910–1916 Clarke 1916–1922 Sutherland 1922–1938 Reed 1938–1957 Whittaker 1957–1962 B. White 1962–1993 Ginsburg 1993– Field 1863–1897 McKenna 1898–1925 Stone h 1925–1941 R. Jackson 1941–1954 Harlan 1955–1971 Rehnquist i 1971–1986 Scalia 1986– McKinley 1837–1852 Campbell 1853–1861 Davis 1862–1877 Harlan 1877–1911 Pitney 1912–1922 Sanford 1923–1930 Roberts 1930–1945 Burton 1945–1958 Stewart 1958–1981 O'Connor 1981–2006 Alito 2006– Catron 1837–1865 a Appointment not confirmed. b Associate justice, 1894–1910. c Associate justice, 1925–1941. d Later chief justice, 1910–1921. e Appointed as chief justice but not confirmed; resigned. f Declined appointment. g Associate justice, 1971–1986. h Later chief justice, 1941–1946. i Later chief justice, 1986–2005. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CHIEF JUSTICE 355 similar views. The chief justice may also assign the authorship of the opinion to himself or herself, as many chief justices have done in cases involving far-reaching constitutional issues. If the chief justice is not in the majority, the senior justice in the majority has the power of assignment. The chief justice is also responsible for the overall management of the Supreme Court, including the oversight and supervision of the Court’s clerks, MARSHAL, reporter of decisions, librarian, and other officers, and the handling of various personnel management issues. The chief justice estimates the Court’s budget and desig- nates the officials to present it to the appropri- ate congressional committees. Although the chief justice is expected to avoid overt partici- pation in political activities, many have acted as public advocates for the Court before Congress. WILLIAM H. TAFT, the only chief justice to have also served as president, actively promoted the Judiciary Act of 1925. That landmark legisla- tion, designed to help the Court manage its large backlog of cases, gave the Court almost unlimited discretion to decide the cases it would accept for review. WARREN E. BURGER, chief justice from 1969 to 1986, lobbied for the establish- ment of a national court of appeals to help alleviate the backlog of federal cases and actively promoted other judicial reform proposals. In 1988, Rehnquist, appointed to succeed Burger, was instrumental in the passage of the Judicial Improvements and Access to Justice Act (Pub. L. 100–702, Nov. 19, 1988, 102 Stat. 4642), which was intended to make the appeal process more efficient by red ucing the Supreme Court’s mandatory appeal jurisdiction. Another responsibility of the chief justice is to oversee the administration of the entire federal judiciary. In 1922 Congress established the JUDICIAL CONFERENCE OF THE UNITED STATES, the governing body for the administration of the federal judicial system. As chair of the confer- ence, the chief justice presides over the conference’s biannual meeting, manages the agenda, and appoints committees. The chief justice also chairs the Administrative Office of the U.S. Courts, created in 1939 during Taft’s term as chief justice, and the FEDERAL JUDICIAL CENTER , established in 1967 under Warren. Like the Judicial Conference, these organizations are also involved in the administration and man- agement of the federal judiciary with the chief justice playing a major role in the selection of directors and other personnel to run them. Congress has also provided chief justices with a number of duties not specially related to the judiciary. The chief justice traditionally serves as a member of the Board of Regents of the Smithsonian Institution and sits on the Board of Trustees of the National Gallery of Art, both located in Washington, D.C. FURTHER READINGS Congressional Quarterly. 2004. Guide to the U.S. Supreme Court. 4th ed. Washington, D.C.: Congressional Quarterly. Witt, Elder. 1993. The Supreme Court A to Z: A Ready Reference Encyclopedia. Vol. 3 of the Encyclopedia of American Government series. Washingto n, D.C.: Congressional Quarterly. Woodward, Bob, and Scott Armstrong. 2005. The Brethren: Inside the Supreme Court. New York: Simon & Schuster. CHILD ABUSE Child abuse is the physical, sexual, or emotional mistreatment or neglect of a child. Child abuse has been defined as an act, or a failure to act, on the part of a parent or caretaker that results in the death, serious physical or emotional harm, SEXUAL ABUSE,or exploitation of a child, or which places the child in an imminent risk of serious harm (42 U.S.C.A. § 5106g). Child-abuse laws raise difficult legal and political issues, pitting the right of children to be free from harm, on the one hand, against the right of families to privacy and the rights of parents to raise and discipline their children without government interference, on the other. The mistreatment of children at the hands of parents or caretakers has a long history. For centuries, this behavior was shielded by a system of laws that gave children few, if any, rights. Under English COMMON LAW, children were treated as property own ed by the parents. Parents, particularly fathers, had considerable latitude over the treatment and discipline of children. This value was carried to the American colonies and incorporated into early laws in the United States. One of the first cases to bring national attention to child abuse arose in the early 1870s. The eight-year-old New York orphan Mary Ellen Wilson complained of being whipped and beaten nearly every day by her foster family. Her case captured the attention of the American GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 356 CHILD ABUSE Society for the Prevention of Cruelty to Animals (ASPCA). An attorney for the ASPCA took Wilson’s case, arguing that as members of the animal kingdom, children are entitled to the same legal protections from cruelty as are animals. A judge heard evidence that Wilson’s foster family, the Connollys, routinely beat her, locked her in a bedroom, and made her sleep on the floor. Charged with ASSAULT AND BATTERY, Wilson’s foster mother was convicted and sentenced to one year of hard labor. Even more significantly, publicity surrounding Wilson’s case led to the establishment, in 1874, of the New York Society for the Prevention of Cruelty to Children. The following year, the New York legislature passed a statute that authorized such societies to file complaints of child abuse with law enforcement agencies. In 1962 an article in a major medical journal again brought national attention to the issue by identifying the symptoms that can indicate child abuse. The article by Dr. Henry Kempe, which appeared in the Journal of the American Medical Association (JAMA), discussed a diagnosis for child abuse. The article resulted in widespread awareness of child abuse and prompted further public discussion on ways to address the problem. By 1970 every U.S. state had enacted laws requiring cert ain professionals, such as teachers and doctors, to report incidents of suspected child abuse to law enforcement agencies. In 1974 the Federal Child Abuse Prevention and Treatment Act (42 U.S.C.A. §§ 5105-5106) became law, authorizing federal funding for states to identify child abuse and to offer protective services for abused children. Statutes make up one component of a state’s child-protective services; another component, the child-protective services agency, implements the statutes. Reporting statutes, which vary from state to state , require that certain professionals report suspected child abuse, whereas others, such as neighbors, are entitled but not required to do so. Other statutes define child abuse. For example, in some states, officially recognized physical abuse occurs only when a child suffers a specified type of injury, whereas in other states, any serious injury that is not accidental in nature is considered abuse. Sexual abuse of children generally need not cause physical injury; any sexual act performed on a child can be considered abuse. Similarly, state statutes categorize as child abuse any neglect of a child that places the child at risk, regardless of whether the child is actually injured. Before substantiating a report of emotional abuse of a child, state statutes generally require a finding of actual harm. Still other statutes specify proce- dures for investigating child abuse, de termining whether a report of abuse is substantiated, intervening to protect an abused child from further harm, and maintaining records of child abuse reports. When allegations of abuse meet the statutory definitions, the state’s child-protective ser- vices agency or a law enforcement agency steps in to investigate. Child-protective services agencies generally investigate allegations only when the child’s parent or guardian is suspected of causing the abuse or of allowing it to occur. FAMILY LAW presumes that the parent or guardian will protect the child from abuse by other parties and that he or she will contact law enforcement agencies to investigate incidents of abuse by other parties when the parent is not causing or allowing the abuse. Caseworkers for child-protective services investigate abuse allegations most commonly by interviewing or visiting with the child, the child’s parents or guardians, and other sources such as physicians and teachers. If an agent finds evidence that supports a conclusion that the child has been abused, the agency deems the allegations substantiated. The next step is intervention. Rate of Child Abuse/Neglect, by Race/ Ethnicity, in 2007 14.2 13.7 2.4 10.3 16.7 9.1 14.0 0 2 4 6 8 1012141618 Mixed race American Indian/Alaskan Pacific Islander Asian Hispanic Black White Rate per 100,000 population SOURCE: U.S. Department of Health and Human Services, Administration for Children and Families, Child Maltreatment 2007. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CHILD ABUSE 357 . Substance of the Crime Was a State of Mind—How a Mainstream, Middle Class Jury Came To War With Itself” UMKC Law Review 68 (summer). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 3 52 CHICAGO. Johnson 1804–1834 Wayne 1835–1867 Strong 1870–1880 Shiras 18 92 1903 Day 1903–1 922 Butler 1 922 –1939 Murphy 1940–1949 Clark 1949–1967 T. Marshall 1967–1991 Thomas 1991– Todd 1807–1 826 Trimble 1 826 –1 828 McLean 1 829 –1861 Swayne 18 62 1881 Matthews 1881–1889 Brewer 1889–1910 Hughes 1910–1916 Clarke 1916–1 922 Sutherland 1 922 –1938 Reed 1938–1957 Whittaker 1957–19 62 B 1941–1946. i Later chief justice, 1986 20 05. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CHIEF JUSTICE