It is a vacuous truism that the Supreme Court has nine justices and that every one of them has a vote that counts. Of the 108 justices who have served throughout the court's 209 years, perhaps not more than a third of them, at most, have really counted in the court's history. The rest have been merely bench-sitters or, at most, cameo role-players, supporting cast to the stars.
The court's history is that of the individuals who have the imagination to lead others to decision, perhaps against their will, or to invent or enlarge doctrine. The stars are the ones who, to borrow a metaphor from George Bernard Shaw, "were makers of the universe," judicially speaking, and not mere "repairers." The universes illuminated by the judicial stars have been enduring.
To truly understand those stars, and to get some sense of the lesser lights, too, an interested reader will turn naturally to the biographer. That urge, however, is not always fully rewarded: biography may explain the man, but not necessarily the judge or the court.
For the great justices, sooner or later, a biographer may get it right. The reader, though, may have to be selective: To know John Marshall well, as the dynamic chief justice as well as the robust Virginian, one has to pick one's way in the Supreme Court's library through three full shelves of biographies. The search can be shortened, though: start with Albert J. Beveridge's masterful four-volume work.
By contrast, if one has any desire to know Justice John McLean, whose name does not shine brightly in court history, one needs )) to be content with a single, quite thin work: Francis P. Weisenberger's "The Life of John McLean: A Politician on the United States Supreme Court" (Da Capo Press, 244 pages, published in 1971, currently out of print).
What distinguishes the stories of those who have made a difference from those who haven't is a biographer's ability to discern and explain the presence - or the absence - of a genuinely creative vision of the law. On the greatness side of that divide are those who caused the law to do or to be something it might otherwise not have been; on the other are the mere tinkerers, fine-tuners of a mechanistic legal code.
Some of the stars among the justices had an instinct for greatness when they arrived; one need not have awaited the biography to tell that. Oliver Wendell Holmes is an example, so is Louis Brandeis, and, conspicuously on the current court, Antonin Scalia. (Abe Fortas seemed to have had it from the start, but his judicial career was sadly cut short by his private greed. Robert H. Bork probably had it, but he never reached the court, which may well have been his own fault and, in some sense, history's loss.)
And some of the stars developed it while on the court, growing into the job. In that category would be, for example, Earl Warren, both justices named John Marshall Harlan (the first in the 19th century, the second in the 20th), Harry A. Blackmun and, among the current nine, Sandra Day O'Connor.
Such a sampling, of course, is just that, taking too little account of the earlier justices - giants like Joseph Story in the first category, and (perhaps for more than reasons of local pride) Maryland's Roger Brooke Taney among the second group, despite the obvious historical and constitutional disaster that was Taney's Dred Scott opinion.
Justice Felix Frankfurter (who might, with something of a stretch, have some claims to be in the pantheon) once wrote a letter to his colleague Justice Stanley Reed (who won't make it, even with a very long stretch) that "the history of the Supreme Court is not the history of an abstraction, but the analysis of individuals acting as a court who make decisions and lay down doctrines."
The individuals who counted the most are, of course, not always the ones who were on the winning side. Justice Scalia, for example, is genuinely gifted doctrinally, and that gives him a distinctive and well-earned place in history even though he can't swing enough votes to prevail on the innovations for which he is justly famous; on today's court, as Scalia goes, so goes Clarence Thomas.
Putting the great ones into broader perspective does not call simply for one more biographical recounting of what they did, for that is often obvious and quite easily recalled.
The need is for compelling insights into why they did it.
How much more intimately we know Holmes because of Catherine Drinker Bowen's "Yankee From Olympus" ( Little Brown, 475 pages, reprint 1980) or how much better we appreciate his famous dissenting colleague through Alpheus Thomas Mason's "Brandeis: A Free Man's Life" (Viking Press, 684 pages, first published 1946, currently out of print).
As for the lesser lights who have served on the court, remembered stories about them tend to grow dim with history. Who among even close students of the court can recount more than a fleeting tale about even some justices who have served the longest? What memories of important court history are aroused by the mere mention of Justice John M. McLean, or Justice James M. Wayne, two of Andrew Jackson's nominees, who remain among the top 10 in length of service?
Still, there are stories to tell about the supporting cast. Harvard historian Arthur M. Schlesinger once suggested that "biographers and historians might more faithfully devote their energies to full-length critical lives of men and women of secondary rank rather than thresh over again the familiar data concerning major historical figures." And that very admonition inspired Weisenberger to give us McLean's biography.
Of course, significant contributions by the secondary figures on the court cannot be manufactured, after the fact, even by a quite readable biography. An interesting little book years ago about Justice George Shiras Jr., by his son George, did nothing to rescue him from oblivion.
However influential their single votes may have been in the dynamics of any given period in the court's history, these "other" justices are the ones who would not (some, probably, could not) see the law in universe-making dimensions. They have performed at or near the margins of American judicial history.
Some are interesting, nonetheless. One who is interesting now (though likely to fade rather rapidly in history despite the fact that his service, at 31 years, ranks among the longer tenures) is Byron Raymond White. The title of a new biography, too flip at first glance, is in fact perfectly descriptive of its contents, and of its principal subject: "The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White" (The Free Press, 457 pages, $30). It is a less-than-adoring and therefore probably more credible work by one of his former law clerks, University of Chicago law professor Dennis J. Hutchinson.
White, to be sure, is entitled to be remembered in at least one way: how unique he is, the only truly great sports hero to go on to become a Supreme Court justice. "Whizzer" White, All-American, "triple-threat" football star at the University of Colorado and in the pro ranks (Pittsburgh [football] Pirates and Detroit Lions), who rose from a hard life in his youth on a Colorado sugar beet farm to the very pinnacle of the American sporting world.
What a story, that he someday would rise to the peak of American law, too!
But did his judicial triumphs overshadow, or even match, his gridiron glory? No, as it turns out. Does Hutchinson tell us why? Not entirely.
Hutchinson's careful research tells a great deal about White as athlete, Rhodes scholar, war hero, Supreme Court law clerk, politician and Kennedy confidant, but he has not gotten to the core of White as a quite enigmatic, and chronically disgruntled, member of the court. The third of the book devoted to White's court years builds somewhat on the earlier-life revelations, and there is some fit between the two.
But, in the end, one is left quite perplexed about why this brilliant student of the law turned out to be, essentially, a nearly passionless technocrat, casting a big, important vote much of the time over three decades, but not casting a very long judicial shadow. Hutchinson's biography does not lengthen that shadow and probably could not. It also leaves much of White's character still in the dark. As a judicial biography, it is a good sports story.
Lyle Denniston has covered the U.S. Supreme Court and matter of justice for The Sun since 1981. Before that he covered the Supreme Court for the Washington Star and the Wall Street Journal. In his 40 years of covering the Supreme Court, he has covered one out of every four justices ever to sit on the court. This year marks his 50th as a journalist.
Pub Date: 7/12/98