Vanderbilt Law Review

First Page



Our theme is simple, overpowering: Justices of the Supreme Court, a number of whose predecessors destroyed the bulk or their correspondence, and who themselves may be tempted to do likewise, nonetheless quite evidently desire, and certainly deserve, faithful (if not quite full) reconstruction, both of their individual roles, and of the Court's, in our constitutional scheme. Much of this story, to quote the then Professor Frankfurter, is "largely irrecoverable,"' yet indispensable to an understanding of our institutions.

Manifestly, something of a paradox is involved in our whole attitude toward judicial history. Much of the law, particularly judge-made public law, is a product of highly selective formulae designed to achieve solutions by selection, by simplification, and even by oversimplification. Yet do we not also simultaneously criticize historians and biographers for abridging an historical record, for forcing their refractory and incomplete materials to fit some preferred or presumed thesis or formula? Reconsideration, of course, at once dispels the paradox: judges are privileged but historians, biographers and legislators are not. Silence, ellipsis, are acknowledged tools of the judicial craft, sanctioned as the lesser evils, in return for getting the job done, the decision made. Therefore reasons are offered, and expected, as matters of grace, not of right. This is elemental. The historian, on the other hand, really is stuck. He must document fully and fairly; he is liable for the full record. He must be "judicial" even when he suspects that counsel and judges were not. He must probe and assess, judge and clarify, not only the opinion and the mountainous record, but also the motives and motivations even when these are obscure, feigned, or denied.