FIRST ONE @ ONE FIRST

Justice Stewart’s Papers are Now Open

Posted in Law and Politics by Mike Sacks on July 13, 2010

Tony Mauro of the National Law Journal is reporting on the opening of Potter Stewart’s papers at Yale:

Stewart died in 1985 at age 70, but he stipulated that his papers would not be made public until the retirement of all justices with whom he served. Justice John Paul Stevens was the last justice in that category, so his departure was the trigger for the release of Stewart’s papers, at long last.

[...] From an initial scan of his case and correspondence files, it does not appear, however, that scholars will learn much about how his brethren won over his vote. The case files generally contain just successive drafts of opinions, with little else.

Mauro’s initial impression of a lack of juicy behind-the-scenes details is corroborated by what I learned in a brief exchange with Professor Larry Tribe at the Kagan hearings.  Tribe was a Stewart clerk in the 1967-68 term and told me that Stewart burned much of his more sensitive papers.  Learning this dampened my enthusiasm to make a trip to New Haven to go digging through Stewart’s records, but perhaps I may still head up there at the end of the summer.

Readers of F1@1F may know that I’m a big fan of Stewart’s “scrupulously non-ideological” jurisprudence, as Mauro describes it. Indeed, if I were ever to write a biography of a Supreme Court justice during his tenure on the bench, I would look to Stewart.  He is of a dead breed of judicial conservatism that will be due for a resurrection in the next decade or two.

As the public begins to recognize that originalism is not at all a safeguard against–but rather a thin veil masking–results-oriented, unprincipled judging, we will see a return of confidence in judges who need no theory of everything to be good, careful, honest judges.  At least so I hope.  Today’s liberal bloc is often derided for being too pragmatic and moderate, that the left needs ideological liberals in the molds of Douglas, Black, Warren, Brennan, and Marshall.  But I think the answer is in more Stewarts, Harlans, Whites, and O’Connors on the right.  A perfect court, in my mind, would have its Brennan/Marshall’s and Scalia/Thomas’s on the wings, with a broad and heterodox middle taking each case as it came.  That would be a diverse bench.  The question remains, however, whether in the age of movement conservatism there remain any pragmatic right-leaning judges or lawyers for future Republican presidents to appoint.

Perhaps some of Stewart’s papers that survived the fireplace may hold a blueprint for a resurgent pragmatic conservatism on the Court.

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