On Assessing the Court in History: Some Comments on the Roper and Burke Articles

Abstract

The idea that there is a symbiotic relationship between American culture and American law is not new. But American historians, as Paul Murphy reminds us,1 have been reluctant to explore this relationship. Mr. Roper and Mr. Burke are not among the laggards. Each from his own point of departure sets out to explore the relationship between law and culture. Both agree that considerations of politics, economics, and morality bear on the judges, influence judicial strategy, and shape Supreme Court decisions; both agree that the decisions of the Court, in turn, leave a cultural mark that often goes beyond the formal rule of law established. There are, however, some special problems facing the historian who attempts to put law in a cultural context. The Supreme Court lives in the world, to be sure. Judges make law, not find it. When they do they are swayed by ordinary human passions and are inclined to political, social, and economic predilections deriving from their own background and experience.' Yet there is an important qualification. The Court is not a legislature. Its procedures and intellectual assumptions are not those of Congress. Judges have biases that shape policy decisions, but they also have commitments to the institutional tradition of the Court and to the methodology of the law. However much the Court is part of the real world of interests and political power, it does not cease being a court of law. The obligation of the constitutional historian is twofold in this regard. He must go beyond the narrow, formal view of the law into the realm of politics, economics, and intellectual history. At the same time, he must do justice to the legal side of the Court; he must show how, within the limits of unique legal institutions, the Justices accomplish their cultural mission. With these observations as a point of critical departure, let me turn to the essays of Mr. Roper3 and Mr. Burke.4