Wednesday, August 27, 2008

Stras on Pierce Butler: A Supreme Technician

Pierce Butler: A Supreme Technician is a new article by David R. Stras, University of Minnesota. It is forthcoming in a symposium issue of the Vanderbilt Law Review on Neglected Supreme Court Justices. Here's the abstract:
Despite serving more than sixteen years on the Supreme Court of the United States and authoring more than 300 opinions, Pierce Butler is one of the most overlooked Justices in American history. Relying on primary source documents housed at the Library of Congress, the University of Washington, the Carleton College archives, and the University of Minnesota archives, this Article is one of the first extensive treatments of Justice Butler in legal scholarship.
As part of a broader symposium on neglected Supreme Court Justices hosted by the Vanderbilt Law Review, this Article highlights four reasons why Butler has been ignored by scholars. First, Butler wrote in highly-technical areas of the law, such as public utilities regulation and tax law, which are of relatively low public salience and are consistently ignored by constitutional scholars who closely study the Supreme Court. Second, Butler's approach to opinion-writing stressed simplicity and minimalism, and it was rare indeed when he used rhetorical flourishes to argue a point. Third, Butler served with a highly-distinguished group of jurists and American historical figures, such as William Howard Taft, Benjamin Cardozo, Oliver Wendell Holmes, and Louis Brandeis, some of whom are consistently rated as the most successful Supreme Court Justices of all time. Finally, in those areas in which he wrote extensively, such as economic liberties, public utilities regulation, and taxation, he found himself on the wrong side of history. As a strict adherent to Lochner, for example, his opinions favoring property rights and economic liberties were essentially overruled by the end of his tenure on the Court.
This Article further challenges some of the fundamental assumptions about Justice Butler by offering a constitutional reassessment that challenges some of the traditional views about Butler's jurisprudence. In contrast to prior characterizations, Butler was hardly a monolithic conservative, as evidenced by his pro-defendant criminal rights and nuanced Fourteenth Amendment jurisprudence. Although this Article does not claim that Butler was one of the great Justices, it does point out that he is deeply understudied, likely underestimated, and regrettably misunderstood.

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