Extrajudicial Writings of Supreme Court Justices

Abstract

Extrajudicial Writings of Supreme Court Justices Miriam Ching Extrajudicial writings of Supreme Court Justices have taken a wide variety offorms over the past two hundred years. In general, any­ thing a Justice wrote and published before, during, or after coming on the Supreme Court outside of usual adjudicative proceedings can be called extrajudicial. Under that definition, all the Justices have recorded something of a “personal” nature that has become public material. Less personal writings usually consisted of lectures on legal issues,1 which in the twenti­ eth century mostly covered interpretations of the Constitution. Some judges wrote mono­ graphs with a professional audience in mind, such as Benjamin Curtis’s Jurisdiction. Practice and Peculiar Jurisprudence ofthe Courts ofthe United States, Henry Baldwin’s A General View of the Origin and Nature of the Constitution and Government of the United States. Harlan Stone’s Law and itsAdministration, and Robert Jackson’s The Supreme Court in the American System of Government. Others aimed to edu­ cate the general public about the judicial branchWilliam Brennan’s An Affair with Freedom being a notable example. Still other writings have taken on the combined form of an autobiography followed by a monograph. This type tended to consist of an account of a few important years in a Jus­ tice’s life or a short narrative ofhis personal ex­ periences, followed by chapters on constitu­ tional interpretation or case analysis. Wiley Rutledge’s A Declaration of Legal Faith is a good example of this format. The vast majority ofJustices who have written about their personal and professional lives followed a standardmodel, giving detailed accounts of family, childhood influences, school­ ing and career. Those who have written in this third style includeJohn Marshall, Joseph Story, Roger Taney, Stephen Field, Henry Brown, Joseph Bradley, Charles Evans Hughes, Felix Frankfurter, James Byrnes, William O. Douglas, Hugo Black, Earl Warren and William Rehnquist. Justice William Brennan wrote An Affairwith Freedom in 1967 in an effort to educate the general reader about the judicial branch. WILLIAM ,J. BRENNAN, JR. AN AFFAIR WITH FREEDOM T COLLECTION OF HIS OPINIONS . IND SPEECHES Drawn from His Firsi Decade as a United States Supreme Court, Justice SELECTED AND EDITED, WITH AN INTRODUCTION AND NOTES, BY STEPHEN J. FRIEDMAN FOREWORD BY ARTHUR X GOLDBERG UNITED STATES REPRESENTATIVE TO THE UNIT® NATIONS ATHENEVN1 NEW TORK 1967 70 JOURNAL 1990 Typically, they prefaced their work by protest­ ing that modesty made them hesitate to write such a self-centered work. Due to the autobiography’s ease of comprehension and purpose, in contrast to a monographonaspecializedareaofthe law,this paperwill focusprincipally on this thirdtype of detailed, personal account published in book form, rather than analyze the numerous legal treatises, private papers, correspondences, and interviews available. Autobiographies are a useful toolto enlarge the study ofanindividualJustice beyond his case opinions, to witness a Justice’s personal dialogue, and to understand past gen­ erations’ legal customs. John Marshall set the nineteenth-cen­ tury style for autobiographies with his passive, non-political vignette covering only his family lineage and pre-Court years. The style ofjudi­ cial autobiographies changed in the twentieth century due to influences within and upon the Court. Innovators such as Oliver Wendell Holmes and Benjamin Cardozo became widely acknowl­ edged for their groundbreaking, non-biographical writings on scholarly legal subjects. Extro­ verts such as Felix Frankfurter and William O. Douglas wrote longer, more detailed, and admittedly political autobiographies for the general public to read. How and why have judicial autobiographies changed in the past two hundred years? II. The Nineteenth Century Nineteenth and twentieth century ex­ trajudicial writings reflected the Court’s image of itself. The individual Justice responded to the environment in which he functioned.2 The early Court carried less prestige and power than it did in later decades. During George Washington’s Administration, the Court was not equal in stature to the Presidency or to Congress. PresidentWashingtonexperienceda hard time filling the Bench, with five candidates decliningappointment. JohnJay, thefirstChief Justice, resigned after five years due to disillu­ sionmentwith the office. Some Justices did not feel that they gained prominent status through their occupation, and appointments to the Court were considerably less coveted than they are now. In the public...