BENEATH THE ROBES
Wright, Charles Alan
Beneath the Robes Brandeis, a free man's life, by Alpheus Thomas Mason. Viking. 713 pp. $7.50. The Legacy of Holmes and Brandeis, a study in the influence of ideas, by Samuel J. Konefsky....
...Mastery of common law niceties and typically "lawyer-like thinking" are at best irrelevant, and more often an encumbrance, to the work of a Supreme Court Justice...
...This is interesting, but every first year constitutional law student is expected to know as much...
...The Legacy of Holmes and Brandeis by Samuel J. Konefsky is something quite different...
...Justice had any previous judicial experience...
...At the same time it is plain that he believes in the things Brandeis believed in, and his book carries added persuasiveness and interest for this reason...
...It is for this reason that Supreme Court biographies enjoy such a vogue...
...And men being what they are, the law these judges has announced has reflected the men that they were...
...Perhaps some of the interest in these essays results from the fact that we know less about these judges—and particularly the mercifully-forgotten Bradley— than of the giants of our own time...
...Mason's Brandeis, now reissued 10 years after its original publication to mark the centennial of Brandeis' birth, is a classic among Supreme Court biographies...
...Understanding of the Justices is the surest path to understanding of the Court and its decisions...
...And there is no evidence that the greatness of either of these two, Holmes and Rutledge, as Supreme Court Justices should be attributed to their experience as inferior judges...
...Konefsky's extremely detailed study of the philosophies of both Justices does offer some useful insight, but suffers fundamentally, I think, in hiding the true greatness of the two men beneath a mass of legal trivia...
...It is a book about Brandeis the man, rather than about a set of abstract ideas pinned to his name...
...Reviewed by Charles Alan Wright BY NOW it should be news to no one that beneath the austere robes of a Supreme Court Justice there sits a man...
...Four of the subjects—Holmes, Brandeis, Stone, and Rutledge—are eulogized in thoroughly undistinguished essays by former law clerks, essays fully as bad as appraisals of a judge by one of his clerks are likely to be...
...Easily the best part of this book is William Winslow Crosskey's provocative paper on Marshall—provocative because of Crosskey's highly controversial views as to the original meaning of the Constitution...
...Justice, a collection of nine lectures about former members of the Court, given at the University of Chicago Law School...
...The biographers do somewhat better by their subjects...
...Mason is a fair-minded observer...
...This sample of good Justices, then, provides an opportunity to test the idea, now so enthusiastically championed by the American Bar Association and disgruntled Southern Senators, that Supreme Court appointments should go to men with experience on the lower courts...
...Only two of the nine men memorialized in Mr...
...Finally, there is Mr...
...Justice, edited by Allison Dunham and Philip B. Kurland...
...Most of the book is devoted to Brandeis' life before his controversial appointment to the Court—but his early career is presented with such thoroughness and devotion that the Justice's work on the bench is seen, properly, as the logical culmination of the liberal causes and the insistence on facts rather than theory that Brandeis believed in and fought for as a member of the bar...
...Nor do I agree with Konefsky's conclusion—apparently shared also by Mason—that Brandeis, rather than Holmes, is "the authentic leader of modern constitutional jurisprudence...
...Five of them—Holmes, Marshall, Brandeis, Hughes, and Taney—are obvious choices for any All-Time All-Ameri-can Supreme Court, and the others, except for Bradley, would have their supporters...
...The Supreme Court today, largely influenced by Justice Frankfurter, has more in common with Holmes than with Brandeis...
...zealous humanitarians have debated cases with class-conscious snobs...
...Despite the weakness of the individual essays in Mr...
...Fiery crusaders have taken their seat on the Supreme Court bench next to ascetic philosophers...
...De Tocqueville observed long ago: "Scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question...
...Indeed, the conservatives who are now demanding previous judicial experience should be chastened to realize that, on their test, only one of the Four Horsemen of the '30s would have qualified...
...316 pp...
...3.75...
...Supreme Court appointments should go to statesmen...
...Certainly Konefsky lays to rest the notion that because Holmes and Brandeis were so often on the same side in cases, they must have been in agreement as to ideas...
...Mac-millan...
...brilliant men of letters have been colleagues of bumbling masters of the scissors and pastepot...
...These men have been of all sorts...
...The judicial techniques which lower court judges use to handle automobile accidents, breeches of contract, and patent thievery are not the techniques useful in deciding the delicate questions of relations between the states and the federal government, or between the government and its people, which are the daily grist of the Supreme Court...
...It is our good fortune that many of the Justices of the past, and most of those discussed in these three books, fit into that class...
...Holmes voted to uphold liberal legislation, despite his own doubts as to its merits, because he felt it was for legislatures, rather than the Supreme Court, to decide controverted issues of governmental policy...
...241 pp...
...Justice, the book as a whole may suggest one point of interest to the "curious general reader" to whom the publisher—over-optimistically, I think—offers it...
...It is, perhaps, a better book than it seems at first...
...Merlo Pusey's rehash of his biography of Chief Justice Hughes has little to commend it, but the discussion of Chief Justice Taney by Carl Swisher, of George Sutherland by J. Francis Paschal, and of Joseph P. Bradley by Charles Fair-man are interesting...
...Mason says in a 12-page chapter what Konefsky takes a whole volume to say...
...The lecturers are well qualified to discuss their subjects, either by personal acquaintance or from having written a biography of a Justice...
...He felt, as Konesfsky says, that "judges have a creative role to play in molding constitutional law to meet the needs of social change—in essence, a responsibility of statesmanship...
...University of Chicago Press...
...The nine Justices discussed are surely a far better than average sample of the men who have served on the Supreme Court...
...It might as well be argued that, since both Holmes and Rutledge taught law before coming to the bench, all justices should be former law professors...
...It ventures a comparative study of the constitutional philosophy of the two justices, and also, though to a lesser extent than the title implies, an evaluation of the influence their ideas have had on the Supreme Court in later years...
...Today almost the only judicial questions to get to the Supreme Court are those which are really political questions in disguise...
...Brandeis voted to uphold the same legislation because he believed in it...
...Like Walt Whitman listening to the learned astronomer, I felt a periodic need, while wading through these dry and heavily-footnoted pages, to slip out and look "up in perfect silence at the stars...
Vol. 21 • February 1957 • No. 2
