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Neglected Justices: Discounting For History

G. Edward White, University of Virginia School of Law

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forthcoming: Volume 62, Number 2, Vanderbilt Law Review (March, 2008)

Abstract

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 the performances of justices are compared across time. The article reaches three related conclusions. First, “neglected” justices, considered in the flow of time, are not a small category of under-appreciated or obscured justices, but 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 history. Third, the formidable historical difficulties which stand in the way of recovering judicial reputations, coupled with the tendency of successive generations of commentators to implicitly equate visibility in a justice with familiarity, means that history will be the chief determinant of whether a justice is neglected.

In support of the above argument, three illustrations of the effects of history on judicial reputations are presented. The illustrations are designed to show how the availability of evidence about a justice’s career can serve to obscure understandings of how that justice’s age contemporaries evaluated his performance; how changing cultures of information about justices can serve to 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.

This article is forthcoming in Volume 62, Number 2 of the Vanderbilt Law Review (March, 2008). Several footnotes in this version make reference to internal documents on file with the Vanderbilt Law Review.

Subject Area

Judges, Legal History, Public Law and Legal Theory

Recommended Citation

G. Edward White, "Neglected Justices: Discounting For History" (June 2008). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 94.
http://law.bepress.com/uvalwps/uva_publiclaw/art94

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