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 David and Mary Harrison Distinguished Professor of Law and University Professor, University of Virginia. My thanks to Erin Thompson for research assistance.
G. Edward White,
Neglected Justices: Discounting For History,
62 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol62/iss2/1