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Fifty years ago last month, Supreme Court Justice William O. Douglas was making national headlines, but not for any decision he had written. Instead, he was leading conservationists and journalists on a well-publicized nine-day, 184.5-mile trek along the Chesapeake & Ohio Canal from Cumberland, Md., to Washington, D.C. The hike was aimed at convincing editors of The Washington Post as well as government officials that the canal should remain pristine and not be paved over for a highway. His campaign was a complete success; plans for the road were dropped, and in 1971 it became a national historical park. Six years later, it was dedicated to Douglas. To celebrate the victory and mark the 50th anniversary of the hike, a hardy group is making the trek again. “To go from an abandoned towpath to what I’ve seen on this trip and previous trips is to see a dream fulfilled,” Douglas’ widow, Cathleen Douglas Stone, told the hikers as the trip began April 18, according to an Associated Press account. The current hike will be at a slower pace, scheduled to end May 1. The original hike was triggered by a Jan. 3, 1954, editorial in the Post urging that the abandoned canal be used for a highway that would “enable more people to enjoy beauties now seen by very few.” Douglas fired off a letter attacking the editorial, extolling the canal area as a place to “get to know muskrats, badgers and fox” and “hear the roar of the wind in the thickets.” Referring to the editorial writer, Douglas continued, “Certain it is that he could never acquire that understanding going 60, or even 25 miles an hour.” Douglas challenged Post editors to join him on a hike down the full length of the canal. The editors accepted, and by the time it began in late March, hundreds of people joined in or lined the route. News dispatches in the Post chronicled the editors’ sore feet — and their changing minds. Only nine men walked the entire distance with Douglas, and only one now survives. Commenting in a National Park Service news release, 84-year-old Colin Riter recalls, “I had always pictured Justice Douglas in his black Supreme Court robes, so it was a delightful surprise to be introduced to this rugged, weather-beaten outdoorsman in hiking clothes, cameras slung over his shoulder, a broad brimmed floppy hat, and an unforgettable, welcoming smile.” News of the anniversary hike brought back memories to one former Douglas law clerk, William Alsup. Alsup, now a judge in the U.S. District Court for the Northern District of California, clerked for Douglas during the 1971 term, when the C&O hike was itself already well in the past. “Justice Douglas was not the kind of person who would brag to us, ‘I’m the one who saved the C&O Canal,’” Alsup said in an interview. “In a way he was a shy person when it came to things like that.” Still, by April of the term, Alsup says the clerks “knew a fair amount of the history.” A similar anniversary hike was scheduled for April 1972, and Douglas’ three clerks asked if they could take the day off to join in, at least at the start of it. Alsup admits the clerks had an ulterior motive; they had not had a day off since they began working for Douglas — not even Christmas or New Year’s Day — so they hoped to get a breather. “A few days passed, and we began to wonder if he would let us do it,” Alsup recalls. “Then one day he came out of his chambers and said, ‘Here’s where you should camp out the night before.’” That was Douglas’ way of giving permission, and he cemented it with another gesture. “He pulled out a bottle of scotch and said, ‘Here, this will keep you warm.’” They followed Douglas’ instructions and met up with the justice for the hike. Douglas, who by then was 73, only hiked six miles. “It was a wonderful day,” says Alsup. “And it turned out to be the only day we got off the whole year.” STEVENS REMINISCES Retirement has been on the mind of Justice John Paul Stevens lately — not his own, as far as can be determined, but rather the past departures of his colleagues. In a recent talk at the University of San Diego, Stevens recalled the departures of all his colleagues no longer on the bench. The text of his April 7 remarks was made available by the Court. Stevens remembered that the first to leave the Court after he joined in 1975 was Justice Potter Stewart, who departed in 1981. Stevens said Stewart probably had the “keenest intellect” of any justice he served with. When Stevens joined the Court, he recalled that he and Stewart were part of an unusual four-justice minority. The Court then “included five members who were at least six feet tall and a minority of relatively short justices,” Stevens said. (Though he did not name them, the other two members of the quartet Stevens was referring to probably were Justices William Brennan Jr. and Harry Blackmun.) Chief Justice Warren Burger left the Court in 1986, Stevens continued. Burger was a “graceful and courteous presiding officer” over the Court, Stevens said, and brought modern-day administration and technology to the Court. An aficionado of fine wines, Burger also “introduced the custom of celebrating each justice’s birthday with a toast at lunch, followed by a hearty rendition of ‘Happy Birthday to whomever,’” Stevens said. “We still follow that custom, and I must say that Clarence Thomas has significantly improved the quality of our singing.” In June 1987, Justice Lewis Powell Jr. announced his retirement to his colleagues and to the public. “He was an exceptionally wise man,” Stevens said. “He was a true gentleman, and he fervidly loved his country.” Brennan was the next colleague to go, Stevens recalled. Stevens said when he first joined the Court, he casually mentioned to Brennan that he had decided not to attend the Gridiron Club dinner, an annual white-tie event that brings together the elites of the news media and politics. Stevens told Brennan he did not own the necessary white tie and tails. “He simply overruled me. He insisted that I had to attend at least the first such dinner during my tenure.” Brennan loaned Stevens his own white tie and tails, and Stevens went. Ever since, Stevens said, he has been “eternally grateful for a generous act that made it possible for me to spend an evening with the still-gorgeous and charming Ginger Rogers as my dinner partner.” Then came Justice Thurgood Marshall’s departure, said Stevens. Stevens remembered Marshall’s “vast repertoire of humorous stories. He seemed to have a joke for every occasion. Unlike most raconteurs, however, he never told the same story twice.” Stevens said his wife Maryan always considered Marshall a special friend, adding that their relationship started with a joke. “When she first met Thurgood, he complimented her on her tan, but warned her that his would always be better,” Stevens said. Justice Byron White, the next to leave, was an avid golfer. Stevens is also a golfer, but he implied that his game was not as good as White’s. “On Monday mornings when he inquired about my weekend game, rather than embarrassing me by asking what I shot, he would usually ask me how many pars I had,” Stevens said. “The question had the special virtue of reminding us that it is far more important to remember one’s good shots than to dwell on the inevitable bad ones.” Stevens also had fond memories of Blackmun, the last of his original colleagues to leave. “Harry and I both had Illinois roots and shared the perennial frustration of being ardent Cubs fans,” Stevens said. Roe v. Wade, Blackmun’s most famous ruling, is “not at the head of the list of Blackmun opinions that I admire,” Stevens said, preferring instead Garcia v. San Antonio Metropolitan Transit Authority, a 1985 ruling on federalism. The occasion for Stevens’ speech was the Nathaniel Nathanson Memorial Lecture, named for the late Northwestern University School of Law professor and former Louis Brandeis law clerk. Stevens was one of Nathanson’s students, and in the speech Stevens said he “had a profound influence on my career.” AND O’CONNOR MAKES THREE The third in a series of ceramic Supreme Court bobble-head dolls has just been delivered to its creators at The Green Bag, the unorthodox law review that is published at George Mason University School of Law. The latest rendition is of Justice Sandra Day O’Connor, third in Court seniority, and the doll is the first “double” bobble-head in the series. Resting at O’Connor’s feet is a polled Hereford cow — the precise kind of livestock she grew up with at the Lazy B Ranch in Arizona. The cow replica displays the Lazy B brand and earmarks. The attention to justice-specific details has characterized all the bobble-heads made so far. Green Bag Editor in Chief Ross Davies, a faculty member at the law school, has designed and ordered them up by seniority, so Chief Justice William Rehnquist and Justice John Paul Stevens preceded O’Connor, and Justice Antonin Scalia is next, due out next year. The dolls are manufactured in China. In addition to the cow, the details in the O’Connor doll include the tan low-heeled pump shoes she wore at her 1981 swearing-in, as well as jewelry and the ruffled jabot she usually sports. O’Connor’s hair is not the same color it is now, and on that subject Davies says, “This is not a 2004 portrait, it is a 1981 to 2004 portrait.” Davies likes to include references to cases authored by the justice. In O’Connor’s case, she is standing on a map of the bizarre Texas districts involved in the 1996 ruling Bush v. Vera. She holds a volume of U.S. Reports that contains her 2000 grandparents rights decision, Troxel v. Granville. And somehow worked into the platform of the doll is a facsimile of a tire valve of the kind at issue in her 1987 jurisdictional ruling Asahi Metal Industry Co. v. Superior Court. Davies launched the series of dolls for the fun of it and to reward subscribers to the law review, but the dolls have begun to take on a life of their own. More than 1,380 O’Connor dolls were made, up from 1,008 of Rehnquist, reflecting an increase in subscriptions — some of which may have come from people who want the doll as much as the publication. (The dolls are not for sale by The Green Bag separately from the subscriptions.) In fact, Davies instituted an “anti-arbitrage policy” after he noticed a number of orders for multiple subscriptions, which he suspects came from people wanting to hoard, then sell the dolls for more than the $35 subscription fee. Under the new policy, Davies says, he won’t give multiple dolls to multi-copy subscribers. But Davies has been glad to give away a small number of the dolls to law student public interest organizations for fund-raising auctions. “They’ve sold for anywhere from $20 to $900,” says Davies. “We’re pleased to help out.” BLACKMUN BRIEFS: THE DATE DEBATE As the Supreme Court considers whether the words “under God” belong in the Pledge of Allegiance in the case of Elk Grove Unified School District v. Newdow, the Blackmun papers at the Library of Congress reveal that the justices have debated among themselves the appropriateness of references to God in one of the Court’s own documents: certificates given to members of the Supreme Court Bar. In a Nov. 30, 1993, memorandum to her colleagues, then-freshman justice Ruth Bader Ginsburg reported that “a few new members of our bar who are not of a Christian faith request deletion of the words ‘in the year of our Lord’ from their admission certificates.” She attached a letter from a California lawyer who objected to the wording because its reference to the Gregorian calendar means that “our Lord” is understood to be Jesus Christ. “Dropping ‘in the year of our Lord’ seems to me an accommodation appropriately made in conjunction with a redesigned certificate,” wrote Ginsburg, who also objected to the size of the certificate then used. Ginsburg reported that certificates issued by three circuit courts did not include the phrase or “A.D.,” its Latin counterpart. Four circuits — including her own former D.C. Circuit — used “in the year of our Lord,” while seven others used “A.D.” In an update the following month, Ginsburg reported she had asked Court Clerk William Suter to produce a sample alternative certificate, and on Jan. 12, 1994, Suter did just that. Suter recommended offering bar applicants two versions — with and without ‘in the year of our Lord” — and amending the application form to make it clear that both options are available. Ginsburg’s next note to her colleagues stated, “Clerk Suter has done a fine job with the new certificate, don’t you agree?” She asked that the issue be placed on the Court’s conference agenda. As often is the case with collected Court papers, the paper trail then turns cold. It is not clear what happened in the Court’s deliberations, though Blackmun’s trademark notes in the margin suggest the Court was not unanimous. He writes “comme ci, comme �a” on one note, and “AS accom but no more,” a reference to Justice Antonin Scalia possibly advocating limited accommodation of the request. Another cryptic reference suggests that Blackmun or another justice determined that the Court’s past Jewish justices had not opposed religious references on their own certificates of service on the Supreme Court. Blackmun also quotes a colleague as saying, “We protest too much.” That phrase appears above an illegible phrase and the letters “CJ,” suggesting Chief Justice William Rehnquist said it. But whatever the vote, the Court went forward with the Suter plan. On the Supreme Court Bar application form, prominently displayed, is a box that applicants can check if they prefer to receive the form without reference to “the year of our Lord.” Most bar admissions are done by mail. But those who are admitted in person during a Court session are also informed that they can ask the clerk of the Court not to swear them in with the words “so help you God.” “Courtside” appears monthly in Legal Times . Tony Mauro’s e-mail address is [email protected]

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