Toward a Historical Understanding of Supreme Court Decision-making

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G. Edward White

Logan Sawyer’s analysis of National League of Cities v. Usery[1] and what he calls “the return of constitutional federalism” recognizes the pitfalls of treating Supreme Court decisions from a wholly “internalist” perspective. Professor Sawyer emphasizes the doctrinal frameworks in which decisions are situated, or a wholly “externalist” one, describing decisions as reactions to the social and political contexts in which they arise.[2]

Professor Sawyer demonstrates that National League of Cities was neither a predictable result in terms of existing doctrine nor the product of new appointments to the Court who were more closely attuned to current politics. It was, in his view, the culmination of an estrangement on the part of commentators and Justices from the argument that extensive federal invasion of the prerogatives of the states was justified because the representation of states in Congress provided “political safeguards” for state interests and concerns. According to the political safeguards thesis, Congressional legislation was unlikely to ignore those interests and concerns because representatives of the states would voice them in Congress.

I find Professor Sawyer’s explanation of National League of Cities plausible, but I am principally interested here in his rejection of both of the strong versions of internalism and externalism in American constitutional history. If one assumes that Sawyer is correct that Supreme Court decisions cannot fruitfully be seen merely as responses to the existing doctrinal frameworks in which constitutional cases are set, or merely as interventions on the social and political issues of the time, what follows? Is there a methodology that might be said to get beyond the internalist-externalist debate and, at the same time, identify the principal factors that, over time, have influenced the Court in its decisions?

I think that such a methodology may be said to exist in the sense that one can identify common variables that have consistently affected the decisions of Supreme Court Justices over the course of American history. Having said that, however, identification of the variables, which contain both internalist and externalist features, does not necessarily overcome the challenges of fashioning explanations for the Court’s decisions that have staying power. Indeed, a closer look at those challenges suggests they may be endemic to work in American constitutional history. The remainder of this essay describes the variables and challenges.

I.          Variables Affecting the Court’s Decisions                            

A. Justices as Historical Actors

Supreme Court Justices are participants in the larger cultures in which their decisions are set and, in that respect, are consciously or unconsciously influenced by the dominant attitudes and values of those cultures. The principal way in which cultural influences manifest themselves in the Court’s decision-making is by implicitly designating certain social issues raised by the Court’s cases as central and contested, and other issues as uncontroversial and easily resolved. Because Justices are confronted with some issues and not others, and because some legal arguments, and not others, are implicitly invested with stature in the resolution of those issues, Justices may be said to be historical actors when they decide cases.

One illustration may suffice. In 1961, the Warren Court unanimously held in Hoyt v. Florida[3] that the state of Florida could exclude women from jury service on the ground that legislators could reasonably conclude participation in civic affairs was inconsistent with the role of women as the principal actors in a sphere of domestic life that was separate from the world of affairs. Among the members of the Court making that decision were Justices who had previously revealed themselves to be responsive to invidious stereotypes based on race, skin color, and national origin.[4] Yet they implicitly accepted comparable stereotypes based on gender. In doing so, they were reflecting conventional views about the social roles of men and women in the early 1960s.[5]

Thus, one way to describe the Court’s decision in Hoyt would be to say that it utterly failed to countenance the argument that excluding women from participation in civic affairs rested on unexamined unsupportable premises about gender roles and characteristics. That argument was not simply rejected in Hoyt; it was not even on the table. Mainstream cultural attitudes at the time Hoyt was decided had served to marginalize the argument, and in implicitly embracing those arguments, the Warren Court Justices revealed their status as historical actors whose decisions were shaped by the cultural boundaries on thought and discourse of their time.

Hoyt v. Florida is far from an unusual case. In looking at the Court’s decisions over time, one can find numerous instances of prospective arguments that were not entertained at all by Justices in some time periods, only to be advanced as justifications for decisions in other periods.[6] The phenomenon of cultural attitudes implicitly establishing boundaries on the justificatory discourse of courts is not only widely acknowledged, but also comparatively easy to document by historians.[7]

Characterizing Supreme Court Justices primarily as historical actors will not be satisfactory, however, to those who prefer to make sense of the Court’s current decisions, because one of the dimensions of the phenomenon of cultural boundaries on judicial reasoning at any point in time is that contemporaries of Justices are rarely able to discern those boundaries. Persons subscribing to mainstream cultural attitudes that serve to foreclose or marginalize particular legal arguments at points in time do not typically consider and reject those arguments; the arguments simply do not occur to them because they are outside the mainstream.[8]

The limitations of the historical actors variable suggest that a full understanding of decision-making at the Supreme Court needs to consider two additional variables. One comes from the fact that the Court makes decisions as a collegial body, requiring in most cases a majority of sitting Justices to subscribe to the results it reaches. The other underscores the dimension of Justices as individual human personalities.

Before discussing each of those variables in more detail, I should point out a defining attribute of each of them. The collegial dimensions of the Court’s work reflect themselves in the deliberative protocols the Court has adopted for entertaining, deciding, and publicizing decisions in cases over its history, and those protocols have changed significantly with time. The meaning of collegiality on the Court has thus changed over the years so that when the collegial dimensions of a Justice’s performance, or a particular Court decision, are considered, the deliberative protocols in place at the time that Justice sat on the Court, or that decision was rendered, need to be understood.

With respect to the variable of individual personalities and attitudes, it should be acknowledged that, for a portion of the Court’s history, that variable has been treated by a set of commentators as not merely one of a set of factors shaping the Court’s decisions but as the decisive factor. “Attitudinalist” scholars believe that the most important things one can say about the Court’s decisions pertain to their outcomes, considered as statements of social policy. Further, the posture of the Justices endorsing or not endorsing those outcomes is considered evidence of positions on the spectrum of political ideology that existed at the time of the decision.[9]

These attributes of the variables of collegiality and individual ideology suggest that there are risks incumbent in their analysis. The risk accompanying the collegiality variable is that an anachronistic understanding of the Court’s deliberative protocols in a stage in its history may incline scholars to come to inaccurate conclusions about the degree of influence a particular judge exerted among his or her colleagues. The risk accompanying the individual ideology variable is that a scholar may, because of assumptions about the political nature of judging or the role of Supreme Court Justices as policymaking officials, conclude that the variable overwhelms all others in the Court’s decisions. This means that at every point in its history the Court can be reduced to a group of nine persons with varying political agendas that they seek to translate into law.

B. Justices as Collegial Decision-Makers[10]

When the Court was first created by the 1789 Constitution, its deliberative protocols seemed to have been largely based on the practices of higher court judges in England. During the tenures of Chief Justices Jay and Ellsworth, the Court typically rendered its opinions through per curiam statements and seriatim opinions, the opinions being issued in order of reverse seniority, with the Chief Justice being treated as most senior and the Associate Justices’s seniority being determined by the date of their appointment. Most opinions of the Jay or Ellsworth Courts began with a short set of paragraphs resolving the precise questions that had been certified to the Court followed by a series of seriatim opinions. On some occasions Justices were absent, and on others a Justice chose not to issue an opinion. The per curiam portion of the opinion was typically delivered by the Chief Justice.

Late in the tenure of Chief Justice Ellsworth some modifications of the protocol appeared. One was that seriatim opinions tended to be issued only in cases in which Justice Ellsworth was not present, which was quite often because Ellsworth was ill for some of his tenure and absent from the Court for a year on a diplomatic mission. The other was that opinions tended to be described as “opinions of the Court,” and did not invariably contain per curiam paragraphs. The expectation seems to have been that Justice Ellsworth would deliver all the Court’s opinions when he was present, whether he had authored them or not.

When the practice of seriatim opinions was abandoned on the Ellsworth Court, there did not seem to be any circulation of the “opinions of the Court” among Justices after one Justice had prepared an opinion. The only changes made in opinions between the time they were delivered in court and the time they appeared in Alexander Dallas’s Reports[11] were made by the editor of the Reports.

In 1800, Justice Samuel Chase stated that he had not written an opinion in the case of Bas v. Tingy,[12] a decision in which Justice Ellsworth had not participated, because “[t]he Judges [had agreed] unanimously in their opinion” so that Chase “presumed that the sense of the Court would have been delivered by the president.”[13] That comment suggested that, by the end of the Ellsworth Court, Justices who were not writing the “opinion of the Court,” but endorsed the outcome it reached, were not preparing seriatim opinions. It also suggested that the Chief Justice might deliver an opinion of the Court even in cases in which he had not participated in the hearing. The Court would adopt both of those tendencies after John Marshall replaced Ellsworth as Chief Justice in 1801.

During Chief Justice Marshall’s tenure, the Court’s deliberative protocols would be refined. In nearly every case in which the Chief Justice participated, the Court adopted the “opinion of the Court” protocol, with Chief Justice Marshall writing a substantial majority of the opinions and sometimes delivering the Court’s opinion in cases in which he had not voted with the majority.[14] In addition, Justices not assigned the task of writing an opinion did not issue opinions at all, whether they had joined the majority or not. The latter practice, referred to by the Justices as “silent acquiescence,” meant that “opinions of the Court” often did not indicate whether they were unanimous or the conclusions of a majority of Justices. Only when Chief Justice Marshall did not participate in a case did his colleagues revert to seriatim opinions.[15]

The final protocol on the early Court meriting discussion was the practice of assigning opinions. From the outset, the assignment power was delegated to the Chief Justice, even in cases in which he was not with the majority. In the Jay and Ellsworth Courts, the only assigned portions of many opinions were the per curiam paragraphs, which were typically, but not exclusively, written by the Chief Justice himself. But as the practice of issuing seriatim opinions receded, and that of silent acquiescence was introduced, the assignment of opinions became an integral part of the Court’s work, all the more so because assigned opinions were not circulated.

Evidence from the Marshall Court suggests that Chief Justice Marshall assigned all opinions in cases in which he participated.[16] There does not seem to have been any expectation among the Justices that opinion assignments would be equally distributed, and they clearly were not. During his thirty-four year tenure on the Court, Justice Marshall wrote 547 opinions.[17] Justice Gabriel Duvall, who served with Marshall for twenty-three years, wrote 15; Justice Thomas Todd, who served on the Marshall Court for eighteen years, wrote 14.[18]

Moreover, there were a very small number of recorded dissents among Marshall Court Justices.[19] Between 1816 and 1823, the Court issued 302 opinions.[20] Chief Justice Marshall wrote for the Court 124 times, Justice Joseph Story 66 times, and Justice William Johnson 47 times.[21] All the other Justices combined wrote 65 opinions.[22] There were only 24 dissents and 8 concurrences issued in that period.[23] In 1824, Justice Johnson announced that “in questions of great importance and great delicacy, I feel my duty . . . to maintain my opinions in my own way,”[24] and between that date and 1833, he wrote 18 dissents and 9 concurrences.[25] But five of Justice Johnson’s colleagues in that period—Marshall, Bushrod Washington, Brockholst Livingston, Duvall, and Todd—issued only 4 dissents and no concurrences among them.[26]

The Justices’ opinion of the Court, silent acquiescence, and assignment protocols, taken together with suppression of recorded dissents or concurrences, form the backdrop against which the collegial contributions of Marshall Court Justices need to be assessed. Although it seems clear that Chief Justice Marshall, who assigned opinions, rarely dissented, and wrote the lion’s share of the Court’s opinions, held a position of dominance in the Marshall Court. One can surmise from the comparatively frequent writing of opinions by Justice Story and Justice Johnson that they very likely expressed strong views on issues during the Court’s deliberations. The collegial contributions of other Justices, such as Livingston, Duvall, and Todd, are harder to discern, especially because one cannot tell, in many instances, whether those Justices concurred with a majority’s disposition of a case or silently acquiesced when they did not.

The takeaway from this discussion of the Court’s early deliberative protocols is that an assessment of the collegial contributions of a Justice needs to be made with reference to the practices of internal collective decision-making during that Justice’s tenure. In this vein, the deliberative protocols of the Court have changed significantly over time. The Marshall Court protocols of silent acquiescence, uneven assignment of opinions, and an “opinion of the Court” authored by only one Justice and not circulated, continued through the Taney Court and into the Chase Court. By Chase’s tenure, however, assignments were not typically made by the Chief Justice when he was not with the majority; instead, a “caucus” of the majority Justices made the assignment.[27] In the Waite and Fuller Courts, the “opinion of the Court,” noncirculation, and silent acquiescence persisted. From Chief Justice Waite’s tenure onward, however, Chief Justices took pains to assign opinions on a roughly equal basis, and correspondence among the Justices suggests that opinion assignments were valued and the absence of assignments were sometimes resented.[28]

Although noncirculation and silent acquiescence were still present in most cases during Chief Justice Fuller’s tenure, those protocols would change in the twentieth century. By Edward White’s tenure as Chief Justice, which began in 1910, there seemed to have been an expectation that drafts of majority opinions would be circulated. And beginning in 1947, the votes of all the Justices who participated in a case were listed in the U.S. Reports, resulting in the virtual demise of the silent acquiescence protocol.[29] The current protocols feature publication of each Justice’s vote and circulation of all majority opinion drafts.

The altered protocols have changed some of the collegial dimensions of a Justice’s work. Instead of Justices being given the option of registering their vote with a majority or silently acquiescing in an opinion that they would not see in draft, they now “sign on to” or dissent from draft majority opinions in all cases and retain the option of filing published concurrences or dissents. This means that the deliberative process for Court decisions now always includes a step where Justices that have signaled their vote to dispose of a case in conference subsequently agree to join a draft opinion justifying that disposition. The author of a draft opinion thus needs to garner a majority for a second time and runs the risk that his or her opinion will not be subscribed to by a majority of colleagues. This creates opportunities for negotiation among prospective members of a majority. In the earlier stages of the Court’s history, such opportunities were not present because the voting members of a majority did not see draft opinions.

In addition, since 1947 the votes of all Justices in all cases are published in the U.S. Reports so each Justice is associated with the language in a majority, concurring, or dissenting opinion. This means that the formulation of language in opinions has become a more common, and more important, feature of a Justice’s work, and that assigning Justices need to take that feature in mind. At least since 1947, the assignment of opinions has been formalized on the Court, with Chief Justices making assignments when they are part of majorities and Associate Justices, in order of seniority, assigning when the Chief Justice is not part of the majority. Because the assignment of an opinion now comes with an expectation that the author will need to circulate a draft and, in effect, re-establish the majority for a given disposition that existed at conference, assigning Justices will consider that step in the process of making assignments. Because of the expectation that opinion assignments will be equally distributed among Justices has remained in place, assignments in visible and contested cases become delicate tasks.

In this setting, the collegial dimensions of a Justice’s work would appear to take an expanded significance. Instead of some Justices being able to avoid extensive participation in the Court’s work through silent acquiescence and infrequent opinion assignments, all Justices have input in the process by which dispositions in conference evolve into majority opinions. Some Justices are more gifted at opinion writing than others; some are more interested, or more effective, in negotiating language in draft opinions; and some are more interested than others in being affiliated with majorities or in writing concurrences or dissents. Whatever a modern Justice’s interest in the collegial dimensions of his or her work, it has clearly been an important feature of the job since the middle of the twentieth century.

Assessing collegial contributions remains a challenge even for modern Justices, because the Court’s work is confidential and individual Justices have discretion in making their internal Court papers available to the public. The evidence from those papers of modern Justices that have been made available suggests that collegial exchanges are a regular feature of a Justice’s work, and that Justices vary widely in the extent to which they participate in and value such exchanges. That said, it is incontrovertible that interaction with colleagues is a major dimension of a modern Justice’s work, that the effectiveness of a Justice’s collegial contributions is regularly assessed by that Justice’s colleagues, and that a Justice’s effectiveness or ineffectiveness as a colleague contributes to his or her reputation.[30]

C. Justices as Personalities

I have previously set forth some of the difficulties with attitudinalism as a methodology for describing or evaluating the decisions of Supreme Court Justices. I have suggested that attitudinalist approaches, which typically assume that decisions of the Court can be cogently understood in terms of the political valences of their outcomes, often rest on a small sample of highly visible public law decisions. These decisions represent a small slice of a Justice’s work product and quite commonly ignore the reasoning of the opinions accompanying those decisions.[31] But the limitations of attitudinalism should not be taken as reducing the human dimensions of judicial decision-making to insignificance. Few would deny that the attitudinal presuppositions of Justices affect how they conceptualize cases and legal issues and thus make a difference in their decision-making. It stands to reason that the more one knows about a Justice’s background, experiences, and attitudes, the better prepared one is to try to explain the Justice’s conceptualization process. Thus, the variable of individual personality remains important, although it risks being indiscriminately applied.

D. The Variables and the “Internal-External” Debate

Before addressing some challenges for an approach toward Supreme Court decision-making over time that focuses on the variables previously discussed, I want to describe the relationship between each of the variables and “internal” or “external” perspectives on the Court. I believe that one of the promising features of a methodology employing the variables is that emphasis on each of them can serve to highlight that Supreme Court decision-making is, and has been over the years, a process that has both internal and external dimensions and thus can be studied most fruitfully through a combination of both perspectives.

Understanding Supreme Court Justices as historical actors obviously requires some attention to the context in which they made decisions, but recovering that context cannot be limited to a simple recounting of events that took place during a Justice’s tenure. In seeking to recreate the experiences of persons that lived in a past time period, it is necessary not only to detail features of their culture that in retrospect appear distinctive or significant, but also to gain some impression of how the inhabitants of that culture perceived and reacted to those features. For example, if the culture contained African-American slavery, it would be important not only to know whether a particular Justice owned slaves or lived in a state where slavery was common, but how that Justice reacted to cases involving slavery that came to the Court.

At first blush, some might think those sorts of inquiries, other than the last, are being made from a perspective external to the Court’s decision-making. But a Justice living in a period where African-American slavery was legally recognized in portions of the United States would be affected by that fact in his internal Court work as well. The legitimacy of slavery was acknowledged in provisions of the U.S. Constitution;[32] Congress passed two fugitive slave acts between 1793 and 1850 that required the forcible return of slaves that had escaped into free states;[33] and the extension of slavery into federal territories remained a contested legal and political issue for more than three decades. Any Justice who served on either the Marshall or Taney Courts would have understood that the existence and acknowledged constitutional legitimacy of slavery meant that a particular legal argument was outside the boundaries of respectability for actors of their time. That argument called for the abolition of slavery, either by Congress or by the Court itself, as inconsistent with the natural rights of humans.

The abolitionist argument was a legal nonstarter for two reasons. First, even if one argued that the term liberty in the Fifth Amendment to the Constitution’s Due Process Clause could be read to include basic human freedoms of various sorts, including the freedom not to be owned as property by another human, the Fifth Amendment had been included in a Constitution which also included the three-fifths clause of Article I,[34] the slave trade clause of that same Article,[35] and the fugitive slave clause of Article IV.[36] Second, although no provision of the Constitution expressly prohibited Congress from abolishing slavery, there was a tacit understanding, from 1789 onward, that the existence or nonexistence of slavery was to be determined by the states.[37]

The experience of being a Justice in a culture that accepted African-American slavery as a social and legal institution was thus not only helpful for defining the context in which that Justice made decisions, it directly affected the decisions that a Justice made by limiting the legal arguments available to that Justice on the issue of slavery itself. One could make a comparable analysis of other features of the historical cultures in which past Justices made decisions. Attitudes about property holding, government, social status, civic participation, Native Americans, and numerous other topics were part of the context in which the Supreme Court entertained cases and affected the Court’s decisions, primarily by establishing tacit boundaries on the spectrum of “acceptable” legal arguments available to those Justices.

In sum, the status of Justices as historical actors is a variable that implicates external as well as internal dimensions of Supreme Court decision-making. A similar conclusion can be drawn about the other two variables previously discussed. As we have seen, the variable of collective decision-making, reflected in the Court’s deliberative protocols, means that the Court’s decisions have been affected by a process that includes (1) voting on the disposition of cases in a conference of Justices, (2) assignment of opinions, (3) the circulation—or noncirculation—of draft opinions, and (4) subsequent exchanges—or the absence of such exchanges—among Justices in the course of preparing drafts for eventual publication. We have also seen that the Court’s protocols have changed, in some instances dramatically, over time.

One can readily see how the collegial dimensions of Supreme Court decision-making affect the internal work of Justices. But there is also an external component to the Court’s changing deliberative protocols. The earlier practices of an “opinion[] of the Court” authored by only one Justice, silent acquiescence, and the uneven assignment of opinions took place at a time when judges were not regarded as the equivalent of lawmakers, when judicial decisions were treated as evidence of the law rather than the law itself, and when judicial opinions frequently alluded to a distinction between the “will of the judge”—an impermissible component of judicial decisions—and the “will of the law”—which judges were charged with finding and applying to cases.[38] Subsequently, when the Court’s deliberative protocols were modified to make (1) the votes of individual Justices visible, (2) the circulation of draft opinions a necessary step in the Court’s decision-making process, and (3) the distribution of opinion assignments more equal, the distinction between the authority of legal sources and the authority of their interpreters had come to be blurred in American legal thought. As a result, Justices were regarded as a certain kind of lawmakers.[39]

Attitudes about law and judging have been distinctive features of the experience of Americans at different points in American history, so the role of those attitudes in shaping the Court’s changing deliberative protocols can be seen as a phenomenon with both external and internal dimensions. Finally, the variable of individual personality and attitude—although perhaps most readily discerned through the exploration of external evidence about a Justice’s background, experiences, and world view—obviously has an internal component as well: the conceptual framework in which a Justice places cases coming before the Court.

Thus, singling out each of the variables discussed in this essay as factors influencing Supreme Court decisions over the course of American history is compatible with an approach to the internal-external debate addressed by Professor Sawyer. Sawyer’s approach suggests that the Court’s decision-making will necessarily contain both internal and external dimensions, and to ignore one or another of those dimensions will be to advance an incomplete analysis of the Court’s work.[40]

II  Challenges

I have argued that the approach to Supreme Court decision-making put forth in this essay has advantages as a methodology than can be applied across time. By seeing Justices as historical actors, the methodology seeks to avoid the difficulty of anachronistic readings of Court decisions. By emphasizing the collegial dimensions of the Court’s work and changes in its deliberative protocols, the approach reveals how changing attitudes toward the nature of law and the role of judges find their way into the Court’s decision-making in a fashion that directly affects the process by which decisions are rendered. By emphasizing the variable of individual personality and attitude, the approach reminds us that an important effect upon the Court’s decisions at any point in its history has been the people who serve on it and what experiential and intellectual baggage they bring to their work.

The approach is nonetheless not without its challenges. Two seem particularly daunting. One is the difficulty of retrieving information that can illuminate the precise ways in which the cultural experiences, or attitudes, of Justices affect their decisions. Because the Court’s internal deliberations are confidential, scholars are dependent on the Justices themselves for records of the Court’s decision-making process. Such records are not likely to surface while justices are active on the Court and in many instances never surface at all. One would like to know a lot more about draft opinions that were modified under pressure from colleagues, justificatory rationales that were abandoned because they seemed unattractive to others, individual reactions to positions advanced by Justices in conference, and, for earlier Courts, simply how a Justice voted in a case. One of the potentially attractive features of the approach is its capacity to translate experiences and attitudes that define a historical culture directly into the legal arguments entertained or discarded in the Court’s decisions. In many cases, however, there is insufficient evidence to trace that translation process in detail.

The methodology thus requires assiduous attention to the historical context of the Court’s decisions and to the Court’s work itself, and even with that attention, one is often reduced to speculation. It is in that speculative component of the methodology that the next challenge surfaces.

Despite the canon of objectivity that has long been associated with scholarship in the historical profession, it has been widely recognized that objective renderings of the past remain elusive.[41] That elusiveness is not, among professionally trained historians, a function of crude anachronistic projections, where one reads the past as vindicating positions one holds in the present. The elusiveness is more subtle: It comes from the fact that the contemporary experiences of scholars tend to shape their approach to previous eras by enhancing the significance of events or attitudes in those eras that have contemporary resonance. If as a contemporary actor one recognizes the emerging importance of same-sex relationships and attention to discrimination on the basis of sexual preference, one may become more interested in investigating the treatment of same-sex couples, or persons with a same-sex preference, in previous time periods.

In some respects an enhanced interest in historical inquiries about certain topics stemming from their current resonance benefits historical scholarship, allowing neglected topics to be researched and the culturally limited interpretations of previous scholars to be revised. The flip side of contemporary resonance is projection of contemporary attitudes and values onto the past that is invariably present when a historian seeks to revise prior treatments of a topic that she or he finds inadequate. This quest for revision partly stems from being an actor living in a different cultural place.

So there is an abiding risk that in treating Justices as historical actors, participants in collective decision-making, or individuals with defining attitudes, scholars will infuse their own contemporary perspectives into their assessments. This will lead scholars to find deficiencies in the Court’s deliberative process, or a Justice’s decisions or attitudes, because they do not conform to contemporary expectations. Alternatively, there is a risk that scholars will transform Justices from the past into modern figures, attaching contemporary political labels to their work or otherwise turning them into the equivalent of current actors.

Thus, the approach requires careful attention to the limits history places on an understanding of the work of actors in the past, and a sustained scholarly effort to recover the experience and attitudes of Justices without having normative contemporary views intrude on that process. But those risks, and those obligations, exist with respect to all historical scholarship. The methodology described here is offered as a way of identifying what has seemed central to Supreme Court decision-making over the course of American history, and as a way of reinforcing Professor Sawyer’s conclusion that any considered analysis of the Justices’ decisions over time needs to draw on both internal and external perspectives.


       [1].     426 U.S. 833 (1976).

       [2].     Logan Everett Sawyer III, The Return of Constitutional Federalism, 91 Denv. U. L. Rev. (forthcoming 2014). For a discussion of “internal” and “external” perspectives on Supreme Court decision-making, see G. Edward White, Constitutional Change and the New Deal: The Internalist/Externalist Debate, 110 Am. Hist. Rev. 1094 (2005).

       [3].     368 U.S. 57 (1961).

       [4].     Examples include Brown v. Board of Education, 349 U.S. 294 (1955) and the per curiam decisions summarily extending Brown to other areas in which de jure segregation existed. See, e.g., Turner v. City of Memphis, 369 U.S. 350 (1962) (per curiam) (municipally owned restaurant); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (per curiam) (public golf courses); Muir v. Louisville Park Theatrical Ass’n, 347 U.S. 971 (1954) (per curiam) (municipally owned amphitheater); Dawson v. Mayor of Baltimore, 220 F.2d 386 (4th Cir.) (public beaches), aff’d per curiam, 350 U.S. 877 (1955).

       [5].     See generally Betty Friedan, The Feminine Mystique (1963) (critiquing those conventional views).

       [6].     One might compare Hoyt with Frontiero v. Richardson, decided twelve years later, in which Justice Brennan’s plurality decision stated that “[t]here can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” 411 U.S. 677, 684(1973).

       [7].     Historical training is helpful for scholars attempting to identify the cultural boundaries on the thought processes of Justices, because those boundaries are rarely made explicit in opinions, more commonly appearing as unstated premises and the failure to trace logical conclusions beyond a certain point. In Hoyt, for example, had the state of Florida sought to exclude African-Americans from jury service on the ground that their skill sets better suited them for the realms of music and athletics than for that of civic affairs, Warren Court Justices would have readily recognized that ground as either based on invidious stereotypes or spurious. Yet they did not apply that logic to the state’s exclusion of women from juries; this was because the application of the logic was blocked by mainstream cultural attitudes about gender roles. Historians are trained to observe and to recover such cultural attitudes.

       [8].     Consider NFIB v. Sebelius, where a majority concluded that Congress’s power under the Commerce Clause did not extend to mandating the purchase of health insurance by individuals under the Patient Protection and Affordable Care Act of 2010. 132 S. Ct. 2566 (2012). That conclusion was seemingly inconsistent with the broad scope afforded commerce power in the Court’s prior decisions in Wickard v. Filburn, 317 U.S. 111 (1942) and U.S. v. Darby, 312 U.S. 100 (1941). Wickard and Darby were themselves departures from the Court’s long-standing assumption in Commerce Clause cases that the federal government’s commerce power operated against a residuum of potentially competing state powers.

Historians have been able to show how the shift to a more latitudinarian interpretation of the scope of the commerce power was historically entailed. They have emphasized the progressive integration of economic activities in the early twentieth century, the increased traffic of goods and services across state lines in the same time period, and a growing tendency on the part of the Court to defer to Congress and state legislatures in cases involving the regulation of economic activity and the redistribution of economic benefits. For just one example of this literature, see Robert L. Stern, The Commerce Clause and the National Economy, 1933–1946, 59 Harv. L. Rev. 645 (1946).

But what explains the Sebelius majority’s resurrection of limitations on the commerce power? Surely there are explanations for that resurrection in contemporary events and cultural attitudes, however, we are too close to those events and attitudes to grasp how they might be imposing their own cultural boundaries on the Court’s interpretation of the commerce power. A dimension of the phenomenon of cultural boundaries on legal arguments is that those operating within those boundaries are not able to grasp the implicit limitations on their thinking.

       [9].     For a detailed discussion of attitudinalist literature (described as “judicial behavioralism” from the 1940s through the 1960s) and for some references to early twenty-first century attitudinalist work, see G. Edward White, Unpacking the Idea of the Judicial Center, 83 N.C. L. Rev. 1089 (2005).

     [10].     For a more detailed discussion of some of the topics covered in this section, see G. Edward White, The Internal Powers of the Chief Justice: The Nineteenth Century Legacy, 154 U. Pa. L. Rev. 1463 (2006).

     [11].     Dallas reported the Court’s decisions in his reports, which also included decisions by the Pennsylvania Supreme Court, from 1790 until 1800. The reporting of the Court’s decisions was a private venture until 1817, when Congress made the reports of the Court’s reporter official reports and commissioned a salary for the Reporter. Congress did not appropriate funds to pay for the publication of what became known as the U.S. Reports until 1874. Prior to that time the Court’s Reporter had earned income from the publication of the Court’s decisions, and the volumes in which those decisions appeared were designated by the Reporter’s name. See, e.g., Sharon Hamby O'Connor and Morris L. Cohen, A Guide to the Early Reports of the Supreme Court of the United States (Fred B. Rotham & Co., 1995).

     [12].     4 U.S. 37 (1800).

     [13].     Id. at 43.

     [14].     For example, in M’Ferran v. Taylor, 7 U.S. (3 Cranch) 270 (1806), Marshall wrote that he “did not . . . concur in the opinion which has been delivered” but that he had “been directed to deliver [it].” Id. at 282.

     [15].     For more detail, see G. Edward White, The Marshall Court and Cultural Change 186–95 (perm. ed., rev. vol. 1991).

     [16].     When Marshall did not participate in a case or did not vote with the majority, the Justices sometimes issued seriatim opinions. An example is Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827). For more detail on Ogden, see White, supra note 15, at 648–53.

     [17].     White, supra note 10, at 1476.

     [18].     Id.

     [19].     Id. at 1476–77.

     [20].     Id. at 1477.

     [21].     Id.

     [22].     Id.

     [23].     Id. at 1477, n.37.

     [24].     Gibbons v. Ogden, 22 U.S. (9 Wheat. 1) 1, 222 (1824) (Johnson, J., concurring).

     [25].     White, supra note 10, at 1475.

     [26].     Id.

     [27].     For evidence of the practice of assignment of opinions by a “caucus” of majority Justices when the Chief Justice was not with the majority, see Letter from Salmon P. Chase to Samuel F. Miller (July 3, 1866), in Charles Fairman, 6–7 Reconstruction and Reunion, 1865–1888 157 (1971). For more detail on the Court’s deliberative process throughout the nineteenth century, see White, supra note 10.

     [28].     For an illustration, see Letter from Morrison R. Waite to Stephen J. Field (Nov. 10, 1875), in C. Peter Magrath, 1 Morrison R. Waite: The Triumph of Character 259–60 (1963). In that letter Waite sought to reassure Field that “[a]s for opinions in important cases . . . I think you fared better than the Judge [David Davis, whose assignment of the majority opinion in U.S. v. Union Pacific R.R. Co., 91 U.S. 72 (1875), Field had complained about] . . . did at the last term.” Id. Waite added that “I intend to treat all my brethren fairly in this most delicate and at the same time important part of my work.” Id.

     [29].     The first case to be treated in that fashion was Rodgers v. U.S., 332 U.S. 371 (1947). I use the qualifier “virtual” because it is still possible for a Justice to prepare a dissenting opinion and then withdraw it after negotiating changes in the language of the majority opinion. Justice Louis Brandeis employed this technique regularly during his tenure (1916–1939), in which circulation of draft opinions had become the norm, but the votes of Justices were not listed in the U.S. Reports. See Alexander M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (1957).

     [30].     A vivid example is Justice Felix Frankfurter, who served on the Court from 1939 to 1965. Frankfurter kept a diary that recorded many conversations he had with his fellow Justices, and he engaged in frequent internal correspondence with his colleagues and other correspondence with friends in which he discussed Court business. The cumulative evidence on Frankfurter’s collegial performance as a Justice suggests that his considerable skills as a legal analyst were regularly offset by his lack of collegial skills, which manifested themselves in “lecturing” other Justices in conference, exhibiting a patronizing attitude toward some colleagues whose intellectual abilities he did not respect, and indulging in petty animosities toward Justices who differed with him on substantive issues. See generally Robert A. Burt, Two Jewish Justices: Outcasts in the Promised Land (Univ. of Cal. Press 1989); H. N. Hirsch, The Enigma of Felix Frankfurter (Basic Books 1981).

     [31].     See White, supra note 10, at 1099–117, 1127–33.

     [32].     E.g., U.S. Const. art. 1, § 2, cl. 3.

     [33].     Act of February 12, 1793, 1 Stat. 302 (1793) (repealed 1864); Act of September 18, 1850, 9 Stat. 462 (1850) (repealed 1864).

     [34].     U.S. Const. art. I, § 2, cl. 3 (“Representatives and direct Taxes shall be apportioned among the several States . . . according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”).

     [35].     Id. at art. I, § 9, cl. 1 (“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”).

     [36].     Id. at art. IV, § 2, cl. 3 (“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”).

     [37].     William Wiecek, in a study of antislavery constitutional thought in the mid-nineteenth century, aptly describes this understanding as the “federal consensus.” William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848, at 57–83, 254 (1977).

     [38].     For more detail, see White, supra note 15, at 195–200.

     [39].     For more detail, see G. Edward White, The Constitution and the New Deal 172-174 (2000).

     [40].     See Sawyer, supra note 2.

     [41].     See generally, e.g., Peter Novick, That Noble Dream (1988).