Writing Supreme Court Histories Mark Tushnet The Supreme Court’s history is of interest to citizens, lawyers, and historians. They are likely to have different reasons and uses for their inter est, however. Lawyers may want to understand the sweep of doctrinal change to understand better the problems they and their clients face.1 Citizens may be more interested in the Supreme Court as an institution of the national govern ment. The reasons people have for interest in the Supreme Court’s history will help define what that history is—that is, what we understand the story of the Supreme Court to be. This essay explores different ways to tell the Supreme Court’s story, showing how different interpreta tions illuminate varying aspects of our nation’s history. Supreme Court History At first glance it might appear that the only substantial topic for Supreme Court historians would be a history of constitutional law. Such a history involves the Supreme Court, of course, because the Court is an important venue in which constitutional law has developed. A history of constitutional law, however, would deal with the Constitution first of all, and the Supreme Court secondarily. It is worth noting, though, that some people might be interested in a history of the Supreme Court as an institution. Such a history would be analogous to a history ofthe Senate or the presi dency. Treating the Court as an institution of government would lead an historian to pay atten tion to the way in which the Court’s personnel were selected, the way its work was defined, and the way its members went about their work. From the beginning of the Court’s history Justices have been chosen because they satisfy both political and professional criteria.2 Presi dent Herbert Hoover nominated Justice Ben jamin Cardozo as a result ofoverwhelming supAn institutional history of the Supreme Court could examine the three Justices President Grant named to the Court as well as his means of selecting them. 12 JOURNAL 1993 Justice William J. Brennan, Jr., delivers the oath of office to Deputy Director of Budget Robert Merriam (left) and to Director of Budget Maurice Stans (middle) on March 18,1958 as President Eisenhower and Vice President Nixon look on. Justice Brennan joined the Court in 1956 shortly before the November presidential election. port for the nomination among the nation’s legal elite. President Dwight Eisenhower nominated Justice William J. Brennan, Jr. primarilybecause he wantedto selectaNortheastemCatholic Demo crat to solidify support among key voters he was to face in the 1956 election. This kind ofhistory of the Supreme Court would try to chart the different emphases given to political and profes sional criteria at different times, and might sug gest some patterns. For example, in the modern era Republican presidents have tended to nomi nate sitting judges while Democratic presidents have tended to nominate people with substantial political experience (President Clinton’s initial inclination to nominate former governor and Secretary ofthe Interior Bruce Babbitt was con sistent with that pattern). I have suggested else where that this pattern results from a partyoriented difference in the evaluation of the Su preme Court as a positive force in government: Democrats tend to believe in an active govern ment, and so in an active Supreme Court whose members see their role as part of the general political process, while Republicans tend to be lieve in a sharp distinction between law and politics.3 A full-scale history of the Supreme Court might reveal other patterns at other times. The Court’s work would be another topic in a history of the Supreme Court. One part of this story would be the history ofjurisdictional stat utes.4 This study would undoubtedlybe quite dry. Seen in broader perspective, however, the evolu tion ofthe Court’sjurisdiction might show how a government institution matures. The overall story shows the Court’sjurisdiction shifting from cases which Congress directed the Court to hear—its mandatory jurisdiction—to cases which Con gress authorized the Court to hear ifit chose—its discretionary jurisdiction. Step by step Congress shifted categories of cases from the mandatory to the discretionary jurisdiction, ordinarily because of complaints from the Court and the...
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Feb 9, 2012
Theodore Eisenberg + 2
Open Access
