[For the occasion and setting of these remarks, see here. DRE.]
Professor Ernst's Remarks:
Mark Tushnet is famously prolific. Back in the 90s, when he was on the faculty here and I was still junior, I had occasion to allude to this trait in explaining why I was taking time before tenure to write a review essay. Many leading American legal historians had worked out their own approaches to history in such writings, I explained. Morton Horwitz wrote such a review essay, Dirk Hartog wrote one; Bob Gordon wrote one. Mark wrote three.
So perhaps you can forgive me for thinking, as I unpacked the very large draft of Mark’s manuscript a few summers ago, “Of course: Ask Mark Tushnet to write a Holmes Devise history of the Hughes Court, and he’ll write two.
And perhaps the thought was all the more understandable because I was aware of the conflicting challenges that confront authors of volumes in the Holmes Devise series. The first is to tell a story of change over time, with sufficient narrative tension to keep readers reading. The second is the expectation that its volumes will tell the whole story of the Supreme Court in the years covered. The author who puts too great a premium on a compelling narrative risks leaving too much out. The author who puts too great a premium on comprehensiveness risks writing an encyclopedia, not a history. “Of course,” I again said to myself, “like Yogi Berra, when Mark came to a fork in the road, he took it.” That is, the first of Mark’s two Holmes Devise histories of the Hughes Court, disguised as the 420-page Part I, is a narrative; the second, more comprehensive history is disguised as the 722-page Parts II and III.
But if my initial reaction, that Mark wrote two books on the Hughes Court, deceptively marketed within the same wine-and-green covers, was understandable, it was also unfair, because
The Hughes Court: From Progressivism to Pluralism really is a single work, with a single point, albeit one requiring both approaches, the narrative and the comprehensive, to establish.
Let’s start with the narrative. More than is true for that of any other Chief Justiceship, readers open a history of the Hughes Court anticipating its narrative arc and especially its climax, the Court-packing plan and the “Constitutional Revolution of 1937.” Mark addresses that expectation right at the outset. Borrowing from the historian of science Steven Shapin, who made an analogous point about the scientific revolution, he writes, “There was no Constitutional Revolution of 1937, and this is a book about it.” Revolutions are abrupt fundamental changes, about faces or swappings out of one structure for another. Mark acknowledges that a dichotomous interpretation of the Hughes Court has “something to back it up” and that “something like dichotomies can indeed be found in the Court’s work”; nonetheless, and to use his word,
The Hughes Court “destabilizes” those dichotomies. Yes, as he shows in Part 3, by the end of Charles Evans Hughes’s chief justiceship a new approach legal approach, pluralism, was emerging and partially displacing the older, progressive one. But in Part 2 he shows many doctrinal continuities across 1937. Further, whether you attempt to distinguish them in political economic terms between conservatives and liberals or in jurisprudential terms between formalists and realists, “most of the justices moved fluidly across the divides when they thought doing so was appropriate.”
And that is because, with some arguable exceptions, the justices were not invested in developing or instantiating theory. “It is a mistake to treat the justices' opinions as embodying deep theoretical commitments,” Mark writes. “Rather, the theories of the administrative state, the public interest, and the judicial process were part of the general atmosphere of thought surrounding the justices.” Aside from Holmes and possibly Cardozo, the “justices were more or less ordinary lawyers immersed in their daily work. Some were smarter than others, some had more direct political experience than others, and all these influences shaped their decisions substantially more than their absorption of external theorizing. Again: “What the justices brought to their decisions was the working–and rather untheorized–jurisprudence of the ordinary judge who learned law in the late nineteenth and early twentieth centuries.”
Well, what were they doing, then? As Mark writes, borrowing language from one of Hughes’s addresses: they were reaching conclusions by consulting both “particular formulas” and “conceptions of basic needs,” constructs that “supplied the grammar of constitutional discourse rather than determin[ed] its content.” That is, Mark doesn’t deny that political economy or what legal process scholars would later call the principle of institutional settlement pointed the justices in the direction they wanted to go. Still, the two constructs were the tools they had to get themselves there, and they had to be used in certain ways or else appear to pass–in Mark’s words–”from lawyerly deliberation to sheer willfulness” (to quote Mark’s rendering of Harlan Fiske Stone’s verdict on Colgate v. Harvey).
It did not take Mark that many pages to tell us this much, but showing it to us was another matter. “Understanding how the tension [between "particular formulas” and “conceptions of basic needs”] played itself out in the Court’s cases,” he writes, “requires attention to rather dry cases far removed from the core constitutional controversies that are typically the focus of attention.” Again, from the preface: “[T]he work of the Supreme Court is, well, work. The justices’ experience was shaped by everything they did, not only by the cases that got the headlines. To capture the experience we must look at as much of the Court’s work as feasible.” And, in case that warning didn’t take, Mark provides another, a description of his method that is somehow both wholly accurate and deceptively understated: “I discuss a rather large number of relatively small cases in some detail.” (I’ll say.)
Those “core constitutional controversies” dominate the narrative in Part 1; the cases in Parts 2 and 3 are more likely to strike readers as “rather dry”–unless they happen to specialize in the law those cases made, in which case the reading is rather thrilling–and at times astonishing. Long ago, Mark famously identified the “‘lawyer as astrophysicist’ assumption,” the belief that lawyers’ general training enables them to “read a text on astrophysics over the weekend and launch a rocket on Monday.” Mark may not have launched any rockets, but he is utterly convincing as he moves across the many topics that found their way to the Court, combining lucid summaries of the often complex records of the cases with equally clear descriptions of the context in which they arose. If you happen to know a topic pretty well and look down at Mark’s footnote, every time you discover that Mark has read just the right source. And if you don’t know the topic well, you’re grateful to Mark for explaining it to you. To take one example: many people have tried to explain to me how holding companies work, but Mark, at page 970, is the only person who has succeeded. To sum up: if you find yourself needing help with an unfamiliar Supreme Court case, you are generally wise to start with the relevant volume of the Holmes Devise. If the Hughes Court decided the unfamiliar case, you are a fool not to start with Mark’s.
That’s enough on the first of two questions one should ask every work of scholarship–“What’s new?” What about the other question, “So what?” To work toward an answer, I want to take up the irony that Laura has just identified, that Mark’s book would have wowed Felix Frankfurter and Paul Freund when one would have expected them to hate a history of the Court written by so important a figure in a movement that sought to destabilize the school of jurisprudence to which they subscribed. You could almost imagine Freund opening the book, with his verdict on the judicial biographer Alpheus T. Mason at the ready (“what Mason touches he vulgarizes”) and then closing it deeply impressed how subtly and seriously Mark explained the justices’ decisionmaking.
I’ve had a similar thought, that Mark has written the book Paul Freund couldn’t, but then I mistrusted it. Although I have worked in Freund’s papers, I can't claim to know his scholarship well nor did I ever take a course from Freund, as Mark did, but I’m assuming that Freund invested the justices’ reasoned elaboration with a timeless normative significance that I doubt Mark shares. That’s not to say that Mark’s book is purely descriptive or without normative implications; it’s just that the implications of an emphasis on craft may have been different near the conclusion of Mark’s career in the legal academy than they were near its beginning. That’s the thing about writing of history being a dialogue between the past and the present: the present keeps changing. Perhaps when the Legal Process pervaded the legal education of so many Supreme Court justices, the politics of law called for revealing the structures of thought obscured by their display of craft. Now, when so many seem to be committed to theory in one form or another, the politics of law call for reminding them that, to use Holmes’s famous term, “jobbism” allowed their predecessors to resolve old challenges and meet new ones in calamitous times, notwithstanding their sometimes sharply conflicting political commitments.
At the end of his acknowledgments, Mark writes that he considers The Hughes Court “the capstone of a career in the legal academy that has now ended.” I can’t disagree: a scholarly lifetime is evident in Mark’s conception of the purpose of his book, in the learning he brought to it, and in the mastery with which he executed his design. I can imagine that it might leave some scholars discouraged, overwhelmed by the realization that they could never produce a similar work, but it heartens me. After contributing vitally so many fields of legal scholarship, Mark has chosen to complete his career in the legal academy with a work of legal and constitutional history. When I reflect on the fact that a scholar as great as Mark is has been so committed to the same enterprise I am I find myself enormously reassured of its value and eager to get back to work.
