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Roundtable - Writing Judicial Biography: Current and Former Wilson Center Scholars Discuss the Hows and Whys

March 17, 2004 // 11:00pm

With participants Joan Biskupic, USA Today; John Ferren, United States District Court; Kevin Merida, Washington Post; Philippa Strum, Wilson Center; Mark Tushnet, Georgetown University Law Center; Stephen Wermiel, American University - Washington College of Law

In a roundtable discussion hosted by the Division of United States Studies, six current and former Wilson Center scholars who have written or are currently writing biographies of United States Supreme Court justices (Biskupic, writing about Sandra Day O'Connor; Ferren, Wiley Rutledge; Merida, Clarence Thomas; Strum, Louis Dembitz Brandeis; Tushnet, Thurgood Marshall; Wermiel, William Brennan) shared their expertise, told stories gathered during their research, and compared notes on how they chose or were chosen by their subjects and the particular difficulties of the sub-genre of judicial biography.

Each scholar had a different answer to the question of how and why she or he choose a specific justice as a subject. Joan Biskupic was intrigued by Sandra Day O'Connor's fiery spirit and great influence on the Court; Steven Wermiel was named by William Brennan as his official biographer; Kevin Merida professed an interest in hard subjects and suggested that understanding Clarence Thomas and his place in the American consciousness was one such challenge. All six panelists mentioned the vacuum they felt in the literature with respect to "their" justice.

That led naturally to a discussion of why judicial biographies might be important and what they can contribute to knowledge. The panelists suggested that portraits of individual justices are helpful to students of history because they shed light on their period of judicial history and on the legal process. While some of the justices studied, such as Thurgood Marshall and Louis Dembitz Brandeis, were important figures long before they joined the Court, others were not. Wermiel, for example, commented that while Brennan was an "amusingly quirky" figure, a twenty-page sketch might have been sufficient to detail Brennan's career had it not been for his accomplishments on the Court.

When the panelists turned to the subject of the particular methodological problems that face judicial biographers, Mark Tushnet spoke about the difficulty of keeping readers interested in the more mundane cases that reach the Court. Only a handful of constitutional cases heard by the Court each year is likely to be of interest to most readers, but it is the dozens of more arcane statutory cases that are the bread-and-butter work of the Court and that may define a justice's interactions with and impact on other members of the Court. Another problem is that judicial biographers are dependent in part on the recollections of the justices' clerks. The clerks have a real working knowledge only of "their" justice, however, which, along with the fierce loyalty clerks tend to feel toward their justice, necessarily skews their views of what happened on the Court at any given moment. The problem of reliance on clerks is exacerbated by the Court's demand for secrecy and its expectation that clerks will respect confidence not only while they are at the Court but for many years thereafter.

The panel touched on the differing problems involved in writing about a justice who is still on the Court and one who is no longer alive. Judge John Ferren indicated that he was particularly sympathetic to the desire of jurists not to tell scholars anything that might embarrass the colleagues with whom they still sit; Philippa Strum talked about Justice Harry Blackmun's unwillingness to let her publish some of the stories he told her about his colleagues. The reactions of living subjects can vary from that of Brennan, who while he was alive opened his papers to Wermiel, through that of O'Connor, who has not authorized Biskupic's biography but has told colleagues and friends that they are free to cooperate with her, to that of Thomas, who has indicated no desire to be helpful to Merida.

Finally, the panelists examined the issue of scholarly objectivity that concerns all biographers. The choice of a subject usually (but not always) indicates that the biographer has a positive feeling toward him or her, and that sympathy can increase as the work goes on. The panelists agreed that a biographer's ability to overcome the challenges of retaining scholarly distance and gaining access to material, all the while making the somewhat obscure workings of the Court accessible to a general audience, sets apart a successful judicial biography with broad-based appeal from one that is either overly dense or overly insubstantial.

Drafted by Ann Chernicoff and Philippa Strum

Philippa Strum, Director of U.S. Studies (202) 691-4129

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