The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. Grier Stephenson, Jr. Perhaps the dominant characteristicofAmeri­ can law is the struggle between constancy and change.1 The same observation applies to the Supreme Court of the United States. The Court serves as custodian ofthe values the Constitution embodies but also “feels the touch of public opinion,” as James Bryce delicately phrased the Justice Louis Brandeis as a young man. He once commented that Justices were “almost the only people in Washington who do their own work.” tension. Accordingly, the Court changes “its colour, i.e., its temper and tendencies, from time to time, according to the political proclivities of the men who composed it.”2 The differences wroughtby these varying“proclivities” mean that understanding the Supreme Court has long been aidedby studyingthe individualswhohavegraced its bench. One begins with a recognition of the signifi­ cance ofthe questions with whichthe Court deals. Whilethe Courthas confrontedpoliticallycharged issues since Chief Justice John Jay’s time, the proportion ofsuch cases has been much higher in the twentieth century than in the nineteenth. For example, constitutional cases, always among the most contentious, occupied only about six percent ofthe docket in 1875, compared to about halfthe docket in recent years. Thus, the particular ideo­ logical complexion of the bench has come to matter even more in the political struggles beset­ ting the nation. The length of service of those who become Justices also merits attention. Once named to the bench, the average Justice will serve longer than any President. Through 1992, the forty American Presidents (counting all repeaters and the split presidency of Grover Cleveland only once) have selected only 106 Justices (counting repeaters and those promoted from Associate to Chief Justice only once and omitting the several confirmed nominees who declined to accept). Beginning with President Washington’s appointees, but ex­ cluding the nine members of the Court sitting in 1992, the average period of service for ninety- 110 JOURNAL 1992 seven Supreme Court Justices has been 15.8 years, and the median has been 15 years, easily besting the longest presidential tenure, Franklin D. Roosevelt’s 12.1 years. For Justices ap­ pointed since 1900, the average number ofyears (22.1) exceeds the average (18) for Justices ap­ pointed between 1800 and 1899 inclusive. By contrast, the median (17 years) for the latter group exceeds that ofthe former (16). The short tenures ofmost Justices appointed prior to 1800 partly account for the slightly lower average for the entire time.3 A third reason which inclines study of the Courttoward its Justices is the role ofthe Justices themselves as decisionmakers. True, recentstud­ ies havenotedthe increasedrelianceby almostall members ofthe Court on their clerks (the “junior supreme court,” as Justice Douglas once referred to them) both in making recommendations on which cases to accept for review and in drafting opinions.4 This development seemingly contra­ dicts the observation made long ago by Justice Brandeis that “the reason the public thinks so much ofthe Justices... is that they are almost the only people in Washington who do their own work.”5 Yet,thetwo observationsmaynotbethat far apart. Individual Justices may continue to do a great deal more of their “own work” than do their counterparts in the other branches of the federalgovernment.6 Whiletherole oflaw clerks and other staffis surely more encompassing than even a half century ago, the Court is unique among Washington’s political institutions in the identity between the Justices and the Court’s decisions. The same can be said only occasion­ ally today ofPresidents, Senators and Represen­ tatives. Witness the scarcity ofbooks about even the most prominent legislators since 1960, all the while there has been an outpouring of books about Congress. The proliferation of both per­ sonal and committee staff has made it increas­ ingly difficult to separate lawmakers from their assistants and advisers.7 Witnessthe books about Presidents which, perforce, must be books about administrations. Presidentshave the leadingpart, to be sure, but it is a leading part in a cast of dozens (at least). The contrast is revealing. Scholars largely rely on judicial opinions for insights into a Justice’s jurisprudential leanings; recentpresidential and congressional documents and letters may be suspect as reliable indicators of a particular President’s...