Biography may not yield the greatness of justice The U.S. Supreme Court, and the manner of its work, remains often elusive.

BOOKS : THE ARGUMENT

July 12, 1998|By Lyle Denniston | Lyle Denniston,Sun staff

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).

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