The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. GRIER STEPHENSON, JR. Introduction Judges, attorneys, scholars, and most certainly readers of this journal will surely agree on one fact concerning the U.S. Supreme Court: an abundance ofliterature in print and, increasingly, in digital form exists about this capstone institution of the third branch of government. For confirmation, one needs merely to conduct a subject search in even a modest-sized library or on Google to reveal literally hundreds of titles on virtually every aspect ofthe Court’s work as well as on the Justices. Yet in contrast to this presentday cornucopia of analysis, perspective, and information is the truth that, with barely a handful of exceptions, systematic study of the Court began only about a century ago as history, law, and political science emerged as distinct professional academic disciplines. For example, the first edition of so es­ sential a mainstay today of judicial history, particularly for the early nineteenth-century Court, as Charles Warren’s The Supreme Court in United States History was not published until 1922. Warren’s three-volume work (a revised edition in two volumes became available in 1926) itself appeared a scant six years after Senator Albert J. Beveridge’s magisterial four volumes of The Life ofJohn Marshall. This was also shortly after Edward S. Corwin1 and Charles Grove Haines2 began to publish their seminal stud­ ies of the origins of judicial review. The timing of the works by these authors was revealing. While it had been fully apparent at least since Marshall’s day that the Court was a politically and not merely a legally significant institution, it had become abun­ dantly clear, if any doubters remained, by the second decade of the twentieth century, that the Court had moved well beyond its initial dispute-resolution role and had become in many ways a maker of public policy for uniform application across the nation. Indeed, as Warren noted in the 1926 revised edition of The Supreme Court in United States History, his objective was to provide “a narrative of a section of our National history connected with the Supreme Court.... As words are but ‘the skin of a living thought,’ so law cases as they appear in the law reports are but the dry bones of very vital social, political and economic contests: they have lost all fleshly interest.” For Warren, his book was an attempt to 326 JOURNAL OF SUPREME COURT HISTORY “revivify the important cases decided by the Court itself from year to year in its contem­ porary setting.”3 Yet, surveying the books of his day, Warren lamented the fact that “few published works” existed for “those who wish to view the Court and its decided cases, as living elements and important factors in the course of the history of the United States.” Indeed, aside from Beveridge’s foray into Marshall, there was little serious work on a large-scale basis besides Gustavus Myers’s History of the United States Supreme Court, which Warren, perhaps disdainfully, described as written “from a purely Socialis­ tic standpoint.”4 Fortunately, most of the deficiencies in the literature that Warren noted have long since been corrected. While it would clearly be an error to insist that subsequent writing on the Court can be traced back to Beveridge and Warren, it does not seem an exaggeration to suggest that their scholarship helped to stimulate much of what followed. Historians, lawyers, and students of politics in subse­ quent years have sought to understand what the Court has done not because of a clientcentered necessity to win cases but because of the reason-centered desire to comprehend the Court, as Beveridge and Warren did, as a component in the political system and a force in shaping the nation. Moreover, more recent scholars inspired by legal realism have endeavored through a behavioral focus to move beyond or beneath the “what” and the “how” by seeking also to explain judicial decisions, that is, to probe the “why” as well. This multifaceted thrust accounts for much of the multidisciplinary character of judicial studies today. The cu­ mulative result of these labors has been a vast body of serious scholarship that falls into several categories that are...