Reflections on the Two Most Recent Holmes Devise Histories of the Supreme Court (Including Mine)

by Mark Tushnet

Abstract

Reading in full Robert Post’s magnificent Holmes Devise history of the Taft Court provoked me to compare the choices he and I made in writing Holmes Devise volumes at roughly the same time.

Two choices Post and I made stood out for me: first, his hope to write a volume “of record” (xxv) compared to my (perhaps resigned) willingness to acknowledge that my volume, long as it is, is not comprehensive; second, his framing of his volumes around what he calls four “narratives about the nature and purpose of constitutional law” (xxvii) compared to my framing around what I called “attitudes” or, sometimes, “legal thought,” drawing upon Duncan Kennedy’s work.

The bottom line should be that his choices were right for him, which in some sense they necessarily were, and mine right for me.  Candor compels me to say, though, that I think my choices were better than his notwithstanding my admiration for his volume’s obviously great merit.