The Judicial Bookshelf D. Grier Stephenson, Jr. Minus sitting Justices as ofmid-1995, ninetynine persons have served on the Supreme Court, one less than the membership of the Senate and not quite two and a half times the coterie of all Presidents from George Washington through Bill Clinton. If it were a club, the Court would be the most exclusive in American government. For most ofits history, membership has been not only earnestly sought but coveted. The continuous outpouring of books about the “Third Branch” attests to its status. I. Scholarly literature has accorded those ninety-nine Justices widely disparate attention, however. Some Justices have been the subject of so many books and articles that any list requires careful pruning. Other Justices have been the focus ofpublished studies respectably numerous so that readers have at least adequate access to their careers. A few remain so neglected that one has to scour the most obscure sources to turn up a handful ofentries. Recent books on Stanley Reed, William J. Brennan, Jr., Salmon P. Chase, and David J. Brewer illustrate this state of affairs. Until publication of John D. Fassett’s read able and well-documented New Deal Justice,1 Stanley Reed had the dubious distinction of reposing among the least examined Justices of the “modem Supreme Court,” the contemporary era in American constitutional history that began about 1937. Prior to Fassett’s, there was but one book-length study of Reed, and it dealt with a single category ofcases;2 even the articles amounted to barely a handful.3 This lacuna is perplexing. In January 1938, Reed became Franklin D. Roosevelt’s second appointee to the High Court, practically on the heels of Hugo Black’s confirmation in August 1937, and well before the nominations of Felix Frankfurter and William O. Douglas in the win ter and spring of 1939, respectively. While Reed did not sit as long as the others in this quartet, his nineteen years of service nonetheless rank him above the average tenure of twentieth-cen tury Justices.4 And these were nineteenjudicially (and politically) tumultuous years. With Charles Evans Hughes as ChiefJustice, Reed arrivedjust as the Court had begun the hasty dismantling of a constitutional order that had reigned from at least 1890. Three Chiefs later, he retired after the young Warren Court had made substantial headway in the erection ofa vastly different con stitutional order. Why, then, has Reed endured comparative neglect? The scarcity ofpublished work suggests the “curious incident” in one of the Sherlock Holmes adventures — the dog that did not bark.5 The presence (or absence) of a combination offactors seems mainly to account for the vastly unequal treatment that former members of the Court have received. Three of these are appar ent, in that they can be cataloged and counted. Three are interpretative, in that they derive from 154 1995 JOURNAL analysis of ideas, events, and relationships. Foremost is a body ofjudicial opinions, par ticularly in constitutional law, spanning at least a decade. Second, there ideally will be a cache of personal and professional papers — letters, Court memoranda, drafts of opinions, and per haps a diary — from which researchers can glean insights not only into the mind of their subject but into the Justice’s place in the inner workings ofthe Court, as alliances are forged, broken, and formed again, as decisions are reached, and as opinions are crafted. Helpful in supplementing the second, or even in compensating for its absence, is a third factor: a trail of published works from various periods of the subject’s pro fessional life. The fourth factor includes tasks, activities, and events outside the Court, whether before or after appointment, whether in the public or pri vate sector, in which the subject had a major hand and which observers deem particularly notewor thy. A fifth component almost certainly guaran teed to stimulate scholarly inquiry is one’s impact on, and contributions to, the Court and constitutional interpretation: that is, a Justice’s “leadership,” whether managerial, intellectual, social, or some mixture of the three.6 Last in this inventory is a judicial philoso phy that speaks to the present day. This factor derives not so much from the...
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Sep 17, 2024
Mehmet Nar 
Open Access
