When I originally introduced Ted's new book, Law in American History: Volume One, one commentator, a practicing lawyer, responded:
Q: White's biographical approach to history could easily fall into “great man” historiography, despite White’s assertion that he advances no such “‘great man’ theory” (White 6). But he seeks less to glorify individual judges than to use them as a means of “reflect[ing] the governing social and intellectual assumptions of various periods of American history.
A: When I wrote the first edition of The American Judicial Tradition I was conscious of a division in historical literature between "idealist" and "materialist" approaches, as well as criticism of a "great man approach" to history, thought to privilege elites and to give an overly weighted causal status to the actions and beliefs of visible individuals. I didn't want the book to be thought "idealist" or subscribing to a "great man" approach. Nor did I want to write admiring essays on my judicial subjects. I wanted to show why the judges I had chosen had been historically important, but not necessarily to emphasize the intrinsic worth of their contributions. Above all, I wanted to emphasize the human dimensions of my subjects--their personalities and judicial styles as well as their ideas--and to present them as historical figures in an evolving "judicial tradition." I meant "tradition" in the sense of a role that American appellate judges have regularly assumed. I did not mean it the sense of reverence for the past or in the sense of law transcending time.
Although I have devoted a good deal of my scholarship to the analysis of ideas, legal and otherwise, I believe that there is a sharp distinction between "taking ideas seriously" and endorsing, even implicitly, the ideas one discusses. My goal is to try to recover the ideas that past actors deemed important as part as recovering the way in which the experienced their worlds.
|Courtesy Smith College|
Q: You have written a number of judicial biographies, all successfully. How did you determine the approach you'd take in writing about the jurists you chose to study? What factors influenced your decision making about which cases and events to cover?
A: I think the first point to recognize about judicial subjects for biographies is that in almost all cases the implicit rationale for writing about the subject is that he or she was a judge and made contributions in that capacity. A few judges have dimensions of their careers that make them visible in other respects. Holmes was a legal scholar, the son of a well known writer, a participant in the Civil War, and a contributor to various correspondences (none of which were published during his lifetime). Warren was governor of California and a candidate for the Vice-Presidency. Several others held offices in the government before being appointed, but only very rarely were they highly visible in those capacities. So in the great bulk of cases one needs to start a judicial biography by recognizing that the implicit case for the subject's importance will be centered in a judicial career.
This creates several problems at the outset. I once said in a talk to a group of U.S. courts of appeals judges about judicial biography that a prospective biographer needed to recognize that for most of his or her subject's life, "the judge went to court. The judge heard cases. The judge conferred in the decision of those cases. The judge wrote opinions. The judge went home. How many readers care to hear about that?" It is not going to be life details, in most instances, that makes a judge potentially interesting. It is going to be the subject's work as a judge. So one needs to think about, from the outset, what makes the judicial career of a judge interesting, and how can I convey that to readers?
Even if one's subject might have the promise of being interesting in his or her human dimensions--a potentially remarkable personality or character--there is the problem of acquiring evidence to flesh out those dimensions of a judge's life and career. With both Holmes and Warren I ran up against the practice of confidentiality that affects any efforts to write about judges. Unless a judge consciously makes internal court papers publicly available--extremely unlikely, given the ethos of the judicial profession--a biographer (even, in my instance, a former law clerk to the judge) is just not going to be privy to documents detailing the internal deliberations of courts on which judges serve. Nor is the biographer likely to come upon documents that help identify a judge's motivation in making a decision or choosing an approach in an opinion. Sometimes the occasional letter or internal memorandum surfaces that helps provide some evidence. But that appearance tends to be so scattered that one worries about its causal weight.
Some judicial biographers try to compensate for the paucity of such documents by interviewing law clerks and other persons who were closely connected to a judge's career. I have written (some years ago in the Law Library Journal) about the use of interviews and oral histories. On the whole, I am skeptical about their explanatory value, because one needs to filter out the perspectives of the people being interviewed and somehow control for variations in perspectives. In addition, an effective interview requires that the interviewer either "know," or at least have a hypothesis about, the topics of the interview, and typically biographers don't reach that level of understanding about their subjects until rather late in a biographical project, when the contributions of oral histories may be less important. Nonetheless some oral histories can be extremely valuable reading--I used two of those sources extensively in writing about Warren, and used Katie Louchheim's interviews with some of Holmes's law clerks in writing about Holmes.
So one often falls back on a judge's written product and how it fits into the judge's "life and times." Some judges do a fair amount of extrajudicial writing, which I think is typically very revealing (even if sometimes highly ceremonial). Sometimes judges have relationships with other judges that are worth exploring--Holmes and Taft, Holmes and McKenna, Holmes and Fuller, Holmes and Brandeis; Warren and Frankfurter, Warren and Brennan, Warren and Fortas, Warren and Douglas. The relationships, especially if they change over time (Warren and Frankfurter being a visible example) can be treated as proxies for the state of a judge's approach to judging at particular points in the judge's career.
I could say a lot more, but I'll stop by quickly addressing "cases" and "events" in a judicial career. Each judicial career is unique in some respects, and a primary task for a biographer is to convey that uniqueness. Some cases capture that uniqueness; many do not because of the collegial nature of appellate judging and the constrained nature of district court judging (district court judges, on the whole, need to follow precedent or they take the chance of being reversed on appeal). I wouldn't automatically start by emphasizing a judge's "visible" cases--I would search for "revealing" cases. That search comes from reading and thinking about the judge's opinions as a whole and trying to note identifiable tendencies.Readers also will find invaluable commentary about the strengths and limitations of biography for legal historians among these sources: Melvin Urofsky, Beyond the Bottom Line: The Value of Judicial Biography, Journal of Supreme Court History, Vol. 23, Issue 2 (Dec. 1998); "Judging and Personality: What Does a Judge’s Biography Tell Us?," an NYU Forum convened in April, 2010 that featured Joan Biskupic, Jeffrey Rosen, Norman Dorsen, and Barry Friedman; and the New York University Law Review's special issue on Judicial Biography, 70 N.Y.U. L. Rev __ (June 1995). Of particular note are Judge Posner's takedown of the genre, aptly and simply entitled, "Judicial Biography," 70 N.Y.U. L. Rev. 502, and “The Contracted” Biographies and other Obstacles to “Truth,” 70 N.Y.U. L. Rev. 730, a transcript of a conversation among Gerald Gunther, Barbara Allen Babcock, Morton J. Horwitz, Dennis J. Hutchinson and William E. Nelson. Therein we learn from William Nelson that "Judge Posner is wrong about judges in general!" Also see "Biographies of Titans," 70 N.Y.U. L. Rev. 677, by Ted White, Sarah Barringer Gordon, John T. Noonan, Jr., John Phillip Reid and William E. Nelson.
As for "events," in many cases they involve judicial decisions. But sometimes they have independent significance in a general portrait of a judge, and can be quite revealing. Marshall's decisions to draft the writ of error for one side in a case in which he publicly recused himself, or to write anonymous pamphlets responding to pamphlet criticism of decisions he authored. Holmes's writing his diary of the Civil War after he had mustered out. Warren's decision to begin his memoirs with a satiric portrait of Dwight D. Eisenhower. Douglas's successive retelling of incidents in his life in a way that the incidents were less accurately rendered in successive versions.
One needs, in my view, to search for those revealing and idiosyncratic opinions and incidents in a judicial career, rather than emphasizing what others may have thought important.