I’m reading G. Edward White’s The American Judicial Tradition: Profiles of Leading American Judges as part of my general background reading on American legal history. Lawrence Friedman may argue that “[t]here really isn’t a canon for legal history,” but I think White’s book at least comes close.
It is, in a sense, a traditional historical work, and seeks to communicate “broad generalizations” about the “essences” of the “subjects and their times” (White 3). Many current historians might quibble about the possibility of such a project, but it is, I think, a fundamental pretense (at least) for any work that attempts to make sense of broad swaths of history.
Core to his entire analysis is the idea that the first Chief Justice of the Supreme Court, John Marshall, established a new and enduring American legal tradition that continues today. Marshall, White argues, establish three key elements:
- a “tension between independence and accountability”;
- a “delicate and unique relation to politics”;
- and a “trade-off” between the power and independence of a judge and the restrains placed on the judiciary (White 3-4).
Although Marshall helped establish an enduring American legal tradition, jurisprudential theories have changed over time. Especially important, according to White, is the shift from a nineteenth century “oracular” view of judge as “law finder” to the twentieth century view of judge as “law maker” (White 4). White ends his work with the Rehnquist Court, but I am left wondering how well this distinction continues to work today given conservative justices like Antonin Scalia, who seems opposed to law making by judges and embraces instead an “originalist” approach to constitutional interpretation. This seems, in a sense, to be more like the nineteenth century’s approach than the twentieth’s.
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” (White 6). White does what so many historians love to do: he rejects theory as a defining force in his work, and instead argues that he’s not pursuing one theory of history over another, but rather “convey[ing] an understanding of what it has meant to be an American appellate judge” (White 6).
White strongly suggests–and I myself have at least somewhat advocated–that the relation between the judiciary and “its social context is one of total integration” (White 6). In other words, the words of appellate judges is at least as much about larger society as it is about the specific case, controversy, or judge. This last point is a key one for any historian seeking to look at legal history as a means of access to broader historical issues, and it’s one that I look forward to developing further–and for which I hope that I can continue to find support.