Neglected Justices: Discounting for History

Summary

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The category of "neglected Justices" presupposes meaningful baselines for evaluating judicial reputations. A Justice cannot be deemed "neglected" except against the backdrop of some purported consensus about that Justice's reputation and the reputations of other Justices. This article argues that when one discounts for history in the process of evaluating judicial reputations, the effects of history are sufficiently powerful to throw into question the integrity of baselines for evaluating Justices, especially when comparing the performance of Justices across time. In support of the article's general argument, three illustrations of the effects of history on judicial reputations are discussed. In the end, the process of retrieving and assessing information about Justices, and efforts to evaluate their performances and compare them over time, only demonstrate that once one discounts for history, the idea of intelligible baselines against which a judge's career can be deemed "neglected" lacks coherence.

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Neglected Justices: Discounting for History

INTRODUCTION

The category of "neglected Justices" presupposes meaningful baselines for evaluating judicial reputations. A Justice cannot be deemed "neglected" except against the backdrop of some purported consensus about that Justice's reputation and the reputations of other Justices. Moreover, when the category of "neglected Justices" encompasses the performance of Justices who served in different time periods, it also presupposes that evaluative baselines for Justices can retain their integrity in the face of historical change and historical contingency.

This Article argues that when one discounts for history in the process of evaluating judicial reputations, the effects of history are sufficiently powerful to throw into question the integrity of baselines for evaluating Justices, especially when comparing the performance of Justices across time.

The Article reaches three related conclusions. First, "neglected" Justices, considered in the flow of time, are not a small category of underappreciated or obscured Justices, but rather the norm. Second, the number of Justices who remain visible over time is quite small, and the visibility of those Justices is based on their association with one or more of the comparatively few legal ideas that have remained resonant for long periods of American legal history. Third, the formidable historical difficulties that stand in the way of recovering judicial reputations, coupled with the implicit tendency of successive generations of commentators to equate visibility with familiarity, leave history as the chief determinant of whether a Justice is neglected.

In support of the Article's general argument, three illustrations of the effects of history on judicial reputations are discussed. The illustrations are designed to show

- how the availability of evidence about a Justice's career can obscure understandings of how that Justice's contemporaries evaluated his performance;

- how changing cultures of information about Justices can distort those understandings; and

- how the twentieth- and twenty-first-century literature "ranking" Justices reveals the difficulty of formulating criteria for evaluating judicial performance that can be applied across time, as well as the tendency of those participating in the rankings process to "lose touch" with all but a very few Justices who served in remote time periods.

I. THOMAS TODD'S "INSIGNIFICANCE"

In the 1980s David Currie and Frank Easterbrook, in separate articles, labeled Thomas Todd, a member of the Marshall Court from 1807 to 1826, as the most "insignificant justice" in the Court's history.1 They drew their characterization of Todd from five features of his career. First, during the eighteen years of his tenure on the Court, he authored only fourteen opinions. Second, he was absent for the Court's entire session in six Terms during his tenure. Third, he wrote only one dissenting opinion, in an indemnity bond case, of five lines. Fourth, he authored no constitutional opinions during his tenure.2 Finally, of the eleven "opinions of the Court"3 that Todd w...

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