How The Man Who Once Was Whizzer White Shaped My Career

foreign good afternoon I'm Jim Duff the executive director of the Supreme Court Historical Society I'm delighted to welcome you today to our virtual platform for the conversation inspired by a recent essay in the society's Journal of the Supreme Court history by Helen Knowles Gardner on the impact of Dennis Hutchinson's groundbreaking biography of Justice Byron white and what it had on her career it's nice to welcome such good friends of the society to our platform and it's an honor special honor to do so today it's also gratifying to display in some ways the results of the society's support and work to preserve the history of the Supreme Court of the United States and it's a personal pleasure for me to introduce such good friends of mine Helen Knowles Gardner is currently an associate professor of political science at the State University of New York at Oswego she is leaving Academia next week to become the research director at The Institute for for free speech she earned her PhD from Boston University and at Oswego she taught classes in American law and politics her research focuses on legal history Helen is the author of numerous books including most recently making minimum wage Elsie Paris versus the West Coast Hotel company published in 2021 by Oxford University press and recently reviewed in volume 47 of the Journal of Supreme Court history she is also a past recipient of the Hughes Gossett student award which she won for her outstanding article her first published article on Lucas verses 44th general assembly of Colorado Helen has been a loyal member of the society's Board of editors and a previous lecture in our virtual series I've known Dennis Hutchinson for almost 47 years like Helen he's inspired me in many ways in my career Dennis is the William Rainey Harper professor and the College of Emeritus senior lecturer in law at the University of Chicago a graduate of Bowden college and a Rhodes scholar Dennis read for the ba in law at Oxford and later received an llm from the University of Texas at Austin he clerked for three federal judges including justices Byron white and William O Douglas where I first met Dennis he began his teaching career at Georgetown University law logging law school where I also had him as an instructor and he was indeed inspiring he then moved to the University of Chicago to georgetown's detriment in Chicago's gang in 1981. his books include the man who once was Wizard white a 1998 New York Times notable book and the Forgotten Memoir of John Knox co-edited with David Garrow he teaches and writes in the areas of modern American constitutional history and judicial Behavior Dennis delivered a lecture in the society's Supreme Court and World War II series their moderator today is Professor Tim Huebner the Irma Sternberg professor of history and chair at this and he's also the chair of the society's Board of editors many of you know Tim and we welcome him today too what a delightful collection of friends they're going to be uh taking questions from the audience and you can share your questions in the Q a box on your Zoom window and now I'm going to get out of the way and enjoy this just like I'm sure the rest of you will Tim the floor is yours thank you Jim and what a pleasure it is to be here today to host this virtual program with two fine Scholars it's such an interesting essay that was recently published in volume 48 of the Journal of Supreme Court history by Helen Knowles Gardner supremely influential how the man who once was Wizard white shaped my career here is that volume and we want to spend some time today talking about this essay um Helen it's so unique it's an opportunity here uh for you in this essay to talk a little bit about sort of your work as a scholar and what kind of LED you to do what you're doing so maybe you can tell us about this essay and what prompted you to write it sure and I I would start out by saying a huge thank you to the staff of the society because um a particular shout out has to go to Jennifer Lowe because without her prompting this essay simply wouldn't exist because I've always known that Dennis's book had a supremely influential impact on my career but getting that story out to the world and telling people about it and putting it down in print which really was a labor of love for me this is this is an article unlike the standard academic article kudos to to Jennifer for pushing me to do this this goes back to I think the spring of last year I put some kind of comment on a tweet on Twitter about Justice white and I I just very vaguely referenced Dennis's book and and how influential it had been and then she kind of pushed me to say oh that would make a good contribution to the journal and maybe then other people might similarly think about writing about influential books on Supreme Court history and maybe we could make this into some some kind of recurring Series in a recurring feature in the journal so basically that's what prompted it and the essay gave me an opportunity to reflect on the multifaceted way in which Genesis Book had impacted my career in terms of legal research in terms of teaching right I opened the essay with the way in which I always introduced Justice white to my students or I should say in the past tense now how I always introduced him to my students I would always sort of say to them well he was a Supreme Court Justice he was an Assistant Attorney General Deputy attorney general he's a World War II veteran and I would go on and on and on and a Rhodes scholar my students were kind of well don't know what that is but I would would build it up on that I would just as a sort of throwaway I would say oh and he played in the NFL and boom all of a sudden I have the students attention like oh this is not your your usual like kind of subject to talk about in the classroom and so in the essay I elaborate on that how it contributed to my teaching to my research and also how it really has helped me in terms of networking so that's what I do and I sort of think about in the essay the way in which it it evolved out of my interest in studying legal and constitutional history and how it became really the starting point for getting my feet wet in the subject matter when I was in grad school thank you yes and I was especially taken by that one passage in the article where you uh sort of quote uh Dennis's statement in the prologue when he talks about participating in the shredding apparently of 25 terms of accumulated case files and you state that you can draw a sort of direct line from reading that passage in his book to your desire to do archival research and the various stages of your academic life maybe you can tell us a little bit more about why that passage was so striking to you one thing that that's really interesting for me going back and re-reading the book in order to write this article was clearly back at the beginning of my grad school career I was not quite as enamored with marking up books as I am now and so really there were very few annotations in the the margins of Dennis's book the first time I read it but I did notice when I was going back and rereading the book that there was a little exclamation mark next to that passage in the prologue and that is that sticks with me today that passage in the prologue you know when I went to graduate school I had done a small amount of archival research When I Was An undergraduate I majored in American studies so not history so going out and doing archival research wasn't the typical thing that somebody doing and studying American studies in England would do but I wrote my senior thesis on the early political the early years of the the politicization of the space program and I ended up at the Air Force historical research agency in Montgomery Alabama going down all sorts of archival rabbit holes as one does and once I got to graduate school I think maybe my second semester I I bought Dennis's book over the the winter break of my at the end of the very first semester second third semesters I took a couple of courses on political biography and constitutional Theory and I couldn't turn down the chance to go to the JFK Library just a short subway ride away from Boston University and it was like opening up an amazing world I would put in these request slips and they would bring me all of these boxes with primary archival material and the thought that white pad instructed his clerks to destroy 25 years worth of these Treasure troves of information it's just something that has really stuck with me it's something that my mind has kept going back to particularly because I look at at least two of the books that I've written they the the book about Justice Kennedy and then the book about West Coast Hotel versus Parish neither of those would exist were it not for quality time spent in archives particularly at the Library of Congress with lots of different justices papers and to think that there's this big void uh in terms of our knowledge of a particular period in Supreme Court history is just something that has stuck with me thank you yes and I want to turn to to Dennis now uh Dennis how did you learn about Helen's essay and uh were you surprised when you heard that your book especially this passage that we've been talking about had had such an impact I heard about her essay from Jennifer Lowe uh who said oh by the way you might be interested in an article that we've accepted to be published in the next volume of the journal and she described it to me and of course I was deeply flattered uh but extremely curious uh yeah I wrote the book for my reasons uh I thought I did a fairly thorough job with what I had and as the passage you uh both the referred to points out so there was a lot I didn't have uh so I was intrigued uh and when I read a draft in the essay uh I was very impressed that's great and I mean just uh thinking about your uh book I mean Helen in her article points out that only about a quarter of your book on Justice white and of course I have a copy here the man who once was wizard white um uh actually focuses on his uh work as a justice but she characterizes it still as a Judicial biography and I'm wondering if you could talk a little bit about uh how you wrote the book and why you wrote it in the way that you did uh I wrote the book because I thought he had lived a remarkably interesting life uh which the first uh two paragraphs of Helen's essay uh emphasize uh and secondly I didn't want him to get away with what his current project had been and that was to shoe away biographers journalists and what he liked to call snoops which for him was a very broad category uh from uh tell me about this remarkable life uh so the combination of that desire was some insight into fighting self and my deep frustration with the brethren which had come out in 1979 right uh impelled me to try to tell a story and do it right and do it with footnotes uh because the terrible problem with the Brethren uh which got discussed over and over again uh after it came out is there's no direct source quotation it's impossible to cross-examine the sources and as anyone knows uh and the two of you of course given the work that you've done no well uh you really want to know who the testimony is coming from and what they're basing it on and I vowed to the extent that I could do it uh anything that I cited and anything that I quoted uh I could document with the contemporaneous note uh and would be able to identify down the line so it was an exercise both in storytelling and in a biographical historiography and for those who haven't read the biography and who maybe don't know much about Justice Byron white um how would you summarize his his life and his work and and especially what made his sort of life story so interesting and uh so unique we pay attention to him uh today uh because he was the first of two appointments to the Supreme Court by President John Kennedy uh and uh he sat on the court for 31 years he wrote a number of important decisions he wrote a number of famous and rather blistering dissents uh including one in Roe versus Wade for which he's uh always remembered uh and he wrote the majority opinion in Bowers versus Hardwick which is the Court's uh first encounter with the asserted right of gays to be constitutionally protected but what may seem uh fascinating to me uh is that uh he came from as we like to say these days from uh abject uh poverty he grew up in the sugar meet fields of uh North Central Colorado and because of his high school grades he won a full tuition scholarship to the University of Colorado and while he was there uh he not only graduated uh fly made a Kappa uh but he uh became on some lists an All-American and finished second in the Heisman troph the second Heisman Trophy uh voting uh with respect to college football and he went from there uh to a road scholarship and when he won the roads uh he was also drafted by the Pittsburgh Steelers as they called themselves in those days uh we know them by a different name uh now uh and the Rooney organization offered him what at that time was the highest salary in professional uh football just over thirty thousand dollars a year and he felt given that his older brother who coincidentally was also a Rhodes Scholar uh Anita the money for his Graduate Studies uh in medicine uh he felt he had to turn down the roads and accept uh the football contract so uh friends appealed to the Rhodes trustees and for the first time and at that point there are more or less uh three decade history granted him a deferral so he played uh for what we would call the Pittsburgh Steelers in the fall and then matriculated uh at Oxford uh at the beginning of the next term he only spent two terms in Oxford however because the war broke out uh and Oxford sent all of the Americans home so he came on um uh went to Yale Law School played two more years of professional football he'd been traded to the Detroit Lions and so he played a square up with the Lions he ended up graduating uh at the top of his Class via Law School and went on to clerk for chief justice uh Fred Vincent and after his clerkship he returned to his home state Colorado and practice law in Denver from the late 40s until the Kennedy campaign began where he worked uh for uh John Kennedy and when Kennedy was elected he was made Deputy Attorney General so we've had uh not exactly the run-of-the-mill CV of a Supreme Court Justice uh or uh even a high official in the Department of Justice and he's worth remembering for the combination of choices that he made in terms of service service to family service to Country uh and so on now in saying that the last thing in the world I'd want to do is to put him on some sort of a pedestal because I can imagine him climbing out of the grave and bringing my neck because the last thing that he ever wanted uh was uh uh adoring publicity and that I tried to avoid completely in what I wrote very good thank you yes uh very important uh justice as you said serving for 31 years from 1962 to 1993. Helen I want to go back to you um one of the main points of your essay seems to be that judges are complicated figures and white was certainly uh complex individual and couldn't be labeled so easily was white just sort of unique in this way or um can you say more about why the terms liberal and conservative are not especially helpful when applied to Supreme Court Justices um this is one of the observations that you make um in your essay maybe you can talk a little bit more about that sure so I wasn't at all aware that there were kind of different schools of thought different methods of of analysis for Law and courts you know when I went to graduate school I thought I was going to focus on Congress and it took one semester of a wonderful Professor teaching me constitutional law to realize no wrong branch of the government I was going to be focusing on the Judiciary instead and when I read Dennis's book as I say I still wasn't really aware of these different types of qualitative and quantitative schools of thoughts and schools of analysis and so Dennis's book appealed to me on a sort of very the basic level that of course human beings are complex of course judges are complex and I I think I spent my entire academic career sort of embodying that thought in my my writing and my research I I have great respect for my law and courts colleagues who do quantitative analysis and I can see some role that it could play even in the study of Law and courts but when at the end of the day I think there's a problem with reducing human human behavior to ones and zeros well one or ones and zeros or two now one is conservative you code somebody is conservative there are one you code them as a two they're a liberal but that presupposes that we can all agree on what liberal is or conservative is and I never believed that there is one definition of liberal one definition of conservative and I think this is really important to keep in mind with regards to the study of constitutional history because as we know the study of history is the study of of continuity and change over time and just like other things which either stay the same or change over time people's perceptions and understandings of those labels liberal and conservative have changed over time one of the things that Dennis's book pushed me to do with that with the the sort of convenience of having the JFK Library just down the road was to do more research into the Kennedy presidency and the appointments the Supreme Court and Federal Judicial appointments by President penalty and it became very clear to me that what people understood as a Kennedy liberal looks very different to what we might understand as a liberal today and so I think those are such amorphous terms that to a certain degree even if we look at a particular Supreme Court Justice and maybe default to an assumption well they're a conservative Justice or they are a liberal Justice at the end of the day they may not be as complex as justifyron white was but nevertheless I I just don't think that it's it's appropriate to put any of those justices in a liberal or conservative box I think that just way oversimplifies and I think at the old at the end of the day also way excessively politicizes the study of Supreme Court history thank you for that um and to just follow up on that point uh one of the observations that you make toward the end of the essay is not only did Dennis's book kind of set you on a path of wanting to go into the archives but but also you end up saying that this book helped to teach you lessons about the Supreme Court appointment process and about the institution itself maybe you could say a little bit more about that yeah I think I think this question really Builds on your your previous one and I'll I kind of alluded to that with my reference to to President Kennedy to your appointment right to the court so whenever I was teaching the Supreme Court or teaching constitutional law and we we came up to the week or the two weeks when we would discuss the Supreme Court appointments process although I had taken a very historical approach to the subject matter it was increasingly becoming clear that the students were coming into this discussion with a sort of a default assumption about how the Supreme Court appointments process works to them increasingly my students were all born in the 21st century and so they look at the appointments process and to them there's only one reason that a president nominates somebody to sit on the Supreme Court and they would say to me well it has to be for purely political partisan reasons the only reason you would nominate somebody to be on the Supreme Court is to push the court in one particular direction to achieve a particular political goal to to sort of achieve us an Extinction of why the president thinks that he or she was was elected what sort of political goals to achieve and I you know I increasingly found that my students were just conditioned to assume that that was the only reason that somebody would nominate somebody to fill the Supreme Court what I tried to do in this essay is to show one of the ways in which Dennis's book has kind of helped me to explain to the students that it's not always like that it hasn't always been like that in history and that we maybe need to take a more nuanced evaluation of the process and that's really how the the JFK Library research that I referred to earlier helped me when I went into those archives presented with all of these wonderful boxes of information they basically emerged with a couple of different projects one of which was the article that Jim referred to at the beginning which was my first published article in the society's Journal about Lucas versus Colorado but then the other project which never came to published fruition until this article that we're talking about today was the research I'd done looking at the differences between JFK's two appointments to the Supreme Court both in 1962 just a few months apart and what the article then allowed me to do with that research is to I I didn't do much just I didn't put much discussion in the essay of the nomination and appointment of white because Dennis has written extensively about that and didn't seem to be much point in retreading that territory but what it did do was allow me to say well white as Danish quite clearly shows in his book was essentially a shoeing for that first nomination um a lot of people within the Kennedy administration had white right at the top of their list right from the beginning and he then as I point out in the essay doesn't fit your mold of a we need someone on the court to pursue a specific political agenda by contrast the other nomination later in 1962 when Felix Frankfurter leaves the court Kennedy then sees an opportunity to replace Felix Frankfurter with somebody who's a much more solidly predictable liberal vote I.E Arthur Goldberg so when you can trust these Civil War to be sure but you replacing Jew since you know there had been a receipt now uh for more than a generation uh and somebody identified with labor uh you know that was you know a constituency that the Democratic party at that time wanted to rely on and this is a way of saying this is who we stand with so he was a twofer he wasn't a shoe in uh but he certainly was a trooper from their standpoint white on the other hand is uh we've discussed was well we've got to have somebody uh who's the perfect symbol of uh the new frontier you know intelligent accomplished athletic committed to Public Service uh perfect there's as I pointed out in the book and there's I know Helen remembers there was a little floor at some point of well we could do something really radical in a point an African-American uh and the wiser councils uh and the candidate uh insiders said no no no no no no that's that's we we just we it's too soon we can't do that but that that's a part of the the sword so I'm sorry to interrupt but uh no I I have no problem with you interrupting Dennis and and one of the things that our comments if you put them together he just emphasizes that these appointments are far have been in the past and will continue to be in the in the future much more complex than a lot of people studying this subject matter sort of default to the Assumption well it's all political I think you make a very important Point uh Ellen that's worth underscoring different presidents take different views of Supreme Court appointments some certainly uh as we've seen in recent years are pushing uh uh overt political agenda I mean we can't deny the last three appointments to the Supreme Court or uh uh a function of that on the other hand you can take somebody like Harry Truman he just appointed his poker playing buddies from the senate or the cabinet you know including one Republican he didn't care about ideology uh and they sometimes voted against him uh Eisenhower is more complex uh George H.W bush well he wanted to get the position filled the same thing it was true uh w uh abnormal made an interesting remark to me after he had left the White House counselorship after his lately career uh in Congress uh he said one of the things that frustrated him uh is that President Clinton viewed the question of Supreme Court appointments as a political challenge more than a political opportunity that is I've got to get 51 votes how do I get 51 votes in this Senate uh so not only are there different questions by different presidents of ideology there are also different political questions as to what is the cost or what is the benefit of a particular appointment that I make but I think that's a great theme uh that I think you're emphasizing Helen we are in the middle of a fascinating uh conversation here with two Scholars Helen Knowles Gardner who's the author of an article in volume 48 of the Journal of Supreme Court history her article is about Dennis's book on Justice Byron white and we welcome your questions as we continue this conversation uh Dennis I want to give you a chance to talk about your experience as a as a clerk and um and especially how that experience of clerking for justice white affected how you wrote the book in the prologue you you basically say that white uh sort of uh as you put it uh left you on your own and that he made it clear that he was not authorizing this in any way I wanted to give you an opportunity to talk a little bit more about that issue after I signed a contract with Simon Schuster to do the book I thought it's a matter of courtesy I should notify the justice and so I made appointment uh and he said what are you here for and I said well I just as a matter of courtesy uh I think it's important for you to know that I've agreed to write a Judicial biography of you is response was to take that massive right hand of his say the hell you say and I said yeah that's what's going to happen and so I kind of composed himself and said well I won't help but it won't get in the way either and that was an enormous benefit the the problem with uh authorized biographies or approved biographies is you're responsible to dozens of editors first in the family and then knowledgeable friends uh and fortunately he told his family and knowledgeable friends uh not to get in the way which led to some amusing uh interactions when I talked to someone in Denver say oh you're right that's great to have a story The Byron's an interesting life and I I assume your book has his blessing and I say no not at all oh well I don't know what I should talk to you uh the wrath of Byron White I don't know most people came around because they thought it was an interesting story uh they knew about his hostility to the press and to his story being told which is I delineate in the book it really stemmed from his college days when he played in the first nit National Invitational Basketball Tournament and there were reporters climbing into his hotel room looking under his bed and doing stuff like that and for you know somebody who had grown up in Hard Scrabble Wellington Colorado uh and that was just too much so you know I was I was on my own uh and uh happily on my own uh and I thought it made it uh in the end a better book and we're starting to get some questions uh one question is from Jim Duff who wants to come back on camera so Jim uh uh come on back thank you Tim I I neglected to mention you're at Rhodes college so uh when I was describing your background so I'll do that now uh and thank you for all the great work you do on our board uh a quick point to make uh about uh something that Dennis just mentioned in passing Justice white was such a great athlete and he did focus on his football career but he played in the national championship he was a guard on the University of Colorado basketball team too and played in the national championship game in the NIT which in those years was the predecessor of the NCAA for championships so um quite a well-rounded athlete as well the question I had was um what can we do to inspire more young scholars to go into your field uh Helen you were inspired by Dennis as was I um and uh and and in conjunction with that just how how important is it uh for preserving the history of the Supreme Court that we encourage young scholarship who wants to take that first Ellen uh you're the one who uh belongs on Center Stage here I I think it's incredibly important to you know even even though I'm about to leave Academia I I still think that the same principles that I'm going to take to my life beyond Academia will still apply that that this should be you know if you're interested in constitutional history I go back to something I've said a couple of times that history is the study of continuity and change over time and you really can't understand constitutional law and constitutional Theory today without thinking about those different arcs of change and continuity over time and I would say that uh one really good way to get a handle on this stuff is to read as many judicial biographies as you can and to pick up biographies judicial biographies of figures that you may not necessarily find yourself agreeing with because there's still going to be a lot for you to learn with this stuff um I I distinctly remember that maybe two or three months after I finished devouring Dennis's book I then picked up a copy of of Gerald Gunther's biography of Learned Hand and it was the same kind of opening all sorts of Windows to learning about those different Ebbs and flows over time yes well I think that's right I think one point that Helen makes and Roseate is that the sort of work that I've done in the G has done showed the complexity of human behavior in a position of power that is not ratified at a Ballot Box uh you know once you get confirmed uh unless you do something really heinous to get impeached and it's never happened to a Supreme Court Justice uh you're in an intellectual uh free fire zone uh and I think the more examples you see of men and women who have confronted uh that the better you understand how the institution itself operates I mean they're wonderful biographies uh John biscupic seems to turn one out uh every other year but also going back Jay Woodford Howard's a biography of Frank Murphy is a supply Splendid piece of work Sydney fine uh uh wrote uh multiple volumes uh on Murphy uh I was first taken with the idea of judicial biography as a window into uh constitutional development with alpheus t Masons a great biography of Harlan Fisk Stone almost in 1956 and when it came out quoting internal working papers of the Supreme Court uh one traditional legal School wrapper another said This is the End you'll never be able to talk to each other uh privately uh this is destroyed collegiality at the Supreme Court and it seems like every year more or less since 1956 somebody writes a column saying collegiality has been destroyed at the Supreme Court well as recently uh the leak of Samuel O'Neill's trapped opinion and dogs uh or something else like it uh no collegiality stock destroyed uh one collegiality is overstated uh it may be that the justices really operators uh justice Powell once said uh as nine little law firms with very little uh interaction other than once a week meetings uh in a conference room they get their work done uh and the question is what do they bring to the task of getting it done and that's what this sort of work that I've tried to do that uh Helen uh has done tries to illuminate and to break out of this notion uh as you've emphasized him uh uh well the president's only uh make appointments for political reasons or justices can be uh categorized as liberal or conservative ridiculous and white said to me once when I was corking well I suppose you want to put me on a Quinn Martin index but sneer uh and he actually knew it was Quinn Martin number uh just to show you that he had taken seriously enough uh the metric categorization of his views but that explains nothing uh so you know I'm just bless Helen for what she's done and uh thank her uh for her attributions absolutely absolutely uh we do have a question uh for you Dennis about um uh what it was like to clerk for both justices white and Douglas maybe you could talk about those experiences uh how they uh uh compared to one another uh it's a trick question for this reason uh I Quirk for Douglas uh in a nominal sense the First full year of his retirement he was entitled to have one professional uh staff because he was editing uh the second volume of his memoirs and he was cataloging his papers for the Library of Congress uh and he wanted and I think the court wanted and I say the court I mean she trusted birder wanted some sort of professional input in the categorization so that this massive archive that he ended up donating would have some coherence uh to uh the finding Aid and the location of materials but because he was retired and for the reason he was retired which was a severe stroke uh he was not a hundred percent to say the least uh and there were times uh I regret to say when he would ask me uh to call him a cab so he could uh go to uh the airport and just wasn't going to happen there were other times when he was uh scary in his uh intellectual retention and Analysis well if you'll take volume 352 off the shelf I think it's uh and uh my understanding opinion where I say x y and z and sure enough you do it uh so it had to be on your toes as much or more than if I were quirking uh for uh somebody who was at the height of his powers uh and frankly he wanted a companion he wanted somebody to talk to he wanted somebody to be able to uh uh go to lunch with a demonical and relive old times so it was two entirely uh different experiences but uh for me enriching in both cases thank you here we have a question about the nature of judicial biography and I'm going to throw this one to you Helen um is it an assumption of judicial biography that a judges uh decisions can be explained or understood according to their previous life experiences actually this is something that you write about in your essay so why don't you talk about that a little bit gosh what a what a big big question I I think I would I would start out by saying it really depends on on the individual you're talking about but I think if you sort of take a step back from from the it depends answer I I I cannot see any decision that is being made by Justice as not being influenced in some shape or form by their background and I think that that's not just applicable to justices and I think it's applicable to all of us every single decision we make is is it is it some shape or form influenced by our background I I could point to specific examples but I'm not going to because I don't want to get into specific cases but when I was writing about Justice Kennedy there was without a shadow of a doubt certain cases that were deeply impacted by people he'd met in the past aspects of his education aspects of of his life growing up in Sacramento and and so I think ultimately the answer to the person's question is absolutely these decisions may not always be influenced by somebody's background to the same extent but nevertheless a person's background is going to shape the way in which they perceive the information presented to them for a particular case I could add another factor I think that's dead right I'd add another factor and that's the local context of the decision-making process uh if you're in a room full of people who have one particularized view of this aspect of the world and you grew up with a totally different one uh you may dig in uh and having put it that way the most obvious uh example uh is and Justice O'Connor was very good about articulating this was having uh justice Marshall in the conference room when discussions of racial discrimination and the subtleties as well as the outrageous of racial discrimination occurred you know she wrote uh very movingly he educated us you know it had to be different uh with hurricane Marshall in the room it had to be different with Ruth Bader Ginsburg in the room talking about discrimination against women so context uh can shade uh expand contract uh the effect of life experience on the framing of the issue let alone the resolution of it thank you yeah and just looking at a few of the other questions that are coming in here as we head into our final uh segment here of our virtual program today um uh Dennis this is a question uh uh for you um you should uh you have have shared what inspired you to write about uh uh justice white but was there a sort of broader aha moment that prompted you to go into legal history in the first place similar to what um Helen has been talking about here um I don't know I I suppose uh to some extent uh it it was my frustration with the brethren you know that that life is more complex than this because I'd lived through one of the terms the final term that they cover uh in their book uh and I recognize some of it I didn't recognize other parts of it I doubted some I recognized some awkward gossip that I had doubted at the moment that was being reported uh with the same factual Authority uh as everything else and I had the luxury uh of teaching at Georgetown which uh like Helen's Subway right away from the Kennedy Library uh is a nice long one one selling cab ride or good long walk uh from the manuscript division of the library Congress and so I decided well what can I find there I found a Harold Burton papers and Burton was the original uh Supreme Court packra and I learned an enormous amount about uh cases uh that I I thought I understood and I thought there's there's something that can be done with this uh archive uh and so that resulted in my first major essay which was in 1979 the same year the Brethren was published uh on decision making in the Supreme Court from 1954 to 1958 that is uh how unanimity was achieved in racial discrimination cases uh and I just found enormously fascinating stuff uh including the first draft of bowling versus sharp the DC companion case to Brown in the board and I made a photocopy of I was allowed to make one and I showed it to Justice Thurgood Marshall who I wanted to interview for the essay of course and he held it up and he said is this real it Warren really write this are you kidding me because the first Raptor bowling versus sharp declares that education is a fundamental right which Marshall had been litigating for much of his career and I I won't tell you what he said he wanted to do with the draft opinion but he did want to have a conversation with Justice Powell about it because Justice Powell had written San Antonio Independent School District versus Rodriguez which had said education is not a fundamental right uh so incidents like that they're just stoked the fires if I might just jump in and add something um something that Dennis said about the the wonderful papers at the Library of Congress sort of just spurred me to jump in here and and add something to my answer about um sort of like the importance of judicial biographies and things but for undergraduates and graduates out there who are focusing on this sort of subject matter or thinking about studying constitutional history or history of the Supreme Court if you can find the resources and have the time I would say go in and do this primary archival research even if it's only in the The Archives of your home institution Library if they have a special collections department go in and sort of get your hands on some of this material and if you're looking to then if you then have the resources to go to the Library of Congress wow the manuscript room is just a wonderful place to spend some quality time researching I was there most recently over spring break in March for 10 days and the room was filled with a small army of undergraduate research assistants that a professor had brought with him and they were all working through the Brennan papers and the recently released Justice Stevens papers and I part of me was thinking I couldn't trust a small army of undergraduates to to scan the right things but then the other part of me was thinking how wonderful it was that these young people were getting involved with the material even if I did hear them a couple of them in the corridor outside saying the Justice Brennan papers smell on the other person said well that's because they're really old I was like okay that's maybe perhaps not the best reaction but hey they're getting involved with this material they're they're sort of seeing how this process of coming to decisions in Supreme Court cases really works one of my former students Ross Davies who teaches at the end needs clear uh law school actually runs a course where the students are required to develop a topic uh and research it using the collection of the manuscript division uh so they actually do real live archival uh legal history research on the court which I think is a terrific uh use of proximity uh by a very imaginary scholar very good well this has been a wonderfully rich and interesting conversation here today we've not been able to get to all of our questions but I do just want to say that the granddaughter of Justice white Emily Lippy uh wrote just to say hello and thank you so it's wonderful to know that family members of the justices or at least of Justice white part of our virtual audience here today uh we are I remember when Emily's mother uh was in high school and writing a term paper uh and telling me that I should work harder because her daddy would sometimes come home green at night from all that he had had to do so uh props to the Lippy family across the board that's great that's great thank you thank you it has as I said it has been such a pleasure to be able to host this uh conversation today with Helen Knowles Gardner Dennis Hutchinson um and to talk about Helen's article on Dennis and Dennis's book uh the man who once was Wizard white a quick reminder for our audience that a survey link will be sent out after the program and uh it's always the case after each of our programs there is a survey link so when you get that link please do respond we want to make our programs as interesting to our members and to the general public as we possibly can the next issue of the Journal of Supreme Court history will be hitting mailboxes soon so be on the lookout that will be volume 48 number two and you can always visit the society's website at www.supremecorthistory.org for updates about the society's upcoming events and links to our past and virtual events and with that we are adjourned thanks to you both thank you thank you

Channel: Supreme Court Historical Society

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Id: CeJdJ7UWino

Length: 61min 24sec (3684 seconds)

Published: Mon Jul 17 2023