James Bradley Thayer, Legal Realist?

James Bradley Thayer (1831–1902) occupies an interesting place in legal history. Having spent the final quarter century of his life as a professor at Harvard Law School, Thayer is a very famous man—to a very limited number of people, those who make a study of American constitutional law. To the general public, and even those fairly familiar with American political and legal history, he is not nearly as well known as some of the protégés and students he influenced. So it is fitting that a teacher and his students should write a kind of “life and legacy” of Thayer, examining the man and those whose thinking he did much to shape. Andrew Porwancher, a professor of constitutional studies at the University of Oklahoma, enlisted three recently graduated students of his—Jake Mazeitis, Taylor Jipp, and Austin Coffey—to join him in writing The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy.

Why the authors call Thayer a “prophet” must be guessed at—more on that below—but he certainly was an influential teacher and mentor. After two chapters on his life and scholarship, this slender volume gives us a chapter on Oliver Wendell Holmes, Jr., a younger contemporary who did not study under Thayer but was long associated with him; a chapter on Thayer’s most prominent students (the future Supreme Court justice Louis Brandeis, the scholar John Henry Wigmore, the future Harvard Law dean, Roscoe Pound, and the future federal judge Learned Hand); and a chapter on Justice Felix Frankfurter, who was a student at Harvard Law after Thayer’s death but professed himself a lifelong Thayerian in his jurisprudence.

But what did it mean to be a Thayerian? The primary reason J. B. Thayer is famous among students of constitutional law is his publication of a celebrated article in the Harvard Law Review in the fall of 1893, “The Origin and Scope of the American Doctrine of Constitutional Law.” The article has been both hugely influential and a bête noire, depending on one’s approach to constitutional jurisprudence—but “Origin and Scope” is probably the most anthologized article in the field, appearing in many textbooks that otherwise consist mostly of abridged and annotated judicial decisions. Thayer, one of the Harvard pioneers of the “case method” of legal education, was also the editor of the first such “casebook” in constitutional law.

The argument of Thayer’s “Origin and Scope”—a short article by today’s law-review standards, just twenty-eight pages—was that the power of American courts to strike down acts of legislation on constitutional grounds was a) derived from the texts of our constitutions, federal and state, and b) so constrained by the character of our institutions that those courts were obliged to entertain a very strong presumption that what the other branches did in the exercise of their powers was consistent with the constitution. Thayer’s own statement of this “presumption of constitutionality” was very strong indeed. For a court to invoke its power of “judicial review” (a phrase Thayer never used, which only came into vogue two decades later), the breach of the constitution must be “clear and unequivocal,” such that any “reasonable” case for an act’s constitutionality was sufficient to sustain it. Even if the judges disagreed, that is, they were not to prefer their own view of the constitution’s meaning to any rational alternative.

Thayer’s highly astringent doctrine is probably so famous because it has been so intensely fought over, at least since the late 1940s, when the historian Arthur Schlesinger, Jr. coined the terms “judicial activism” and “judicial restraint” for the warring wings of Roosevelt and Truman appointees on the Supreme Court. The Thayerian preference for judicial restraint, championed by Justice Frankfurter, was at odds with the emerging—and ultimately triumphant—impulse for de facto legislating by an activist judiciary, championed by figures such as Justice William O. Douglas. For at least seven decades now, while constitutional jurisprudence and legal scholarship have evolved in manifold ways, a through-line regarding the proper role of the judiciary has been a constant—and one’s understanding of and response to Thayer’s article has constituted a kind of cleat to which that hawser is tied.

If this were all that need be said of Thayer’s legacy, it would be a noteworthy one, but not of continental proportions. Porwancher et al., for their part, make the case that Thayer was more than the progenitor of judicial restraint: they view Thayer as a legal realist, or at least a proto-realist—“the godfather” of that movement in legal thought, they say in their introduction. (This probably accounts for the “prophet” in their title.) Thayer’s alleged “realist” tendencies become the through-line of their book, and it is just here that I think they are mistaken. The purported evidence for Thayer’s (proto-) realism is scattered, scanty, and, I believe, largely misunderstood by the authors.

What was—or perhaps we should say is—legal realism? Opinions vary about its contours, about the dating of its emergence and heyday, and about who is to be counted among its adherents. Historian Laura Kalman, writing in the mid-1980s, located the school of thought chiefly in the 1930s, and chiefly at Yale Law School, saying it “won no converts at Harvard,” which had been Thayer’s home—though she concedes that Frankfurter and other Harvard professors “rebelled against formalism,” the idea that the law is an orderly set of unvarying rules, discovered by judges (not made by them) and logically applied to cases.  More recently Brian Tamanaha has questioned how much the “realism vs. formalism” dichotomy really explains in legal history. In Tamanaha’s view, “formalism” was largely a caricature of the legal realists—a bogeyman that in truth barely existed as they described it—while many of the hallmarks of what came to be called “realism” in the twentieth century are visible far earlier.

But what are those hallmarks? To a certain extent, legal realism advances propositions that should be uncontroversial: that judges’ personal views have an effect on their judgments and reasoning; that lawyers should concern themselves with predicting how judges will rule; that there is always some degree of freedom for judges to interpret statutes, precedents, and constitutions, as well as the facts in any case and their relevance; and that there are gaps or interstices in the law that particular cases sometimes call on judges to fill to the best of their ability. To some degree, each of these propositions is so true as to be a truism that no student or practitioner of the law has ever seriously denied.

The question with respect to each of them is precisely the degree of weight accorded them. “The rule of law and not of men” is destroyed if any of them is taken as completely and utterly true without qualification. If the law is nothing but a reflection of what judges personally believe about justice, then law self-destructs. If lawyering is only the prediction (and manipulation) of judges’ decisions rather than arguments from principle, then law self-destructs. If the freedom to construe all legal materials is perfectly untrammeled by interpretive norms that constrain judicial willfulness, then law self-destructs. If the law is all gaps and nothing determinate or given, then—you know the rest.

At their most outré, the legal realists of the 1920s and ’30s embraced such extremism virtually without qualifications, attacking all formal principles of restraint and effectively collapsing the rule of law into the rule of judges. Porwancher et al. evidently believe that Thayer pointed the legal profession in that direction, and I think in this they are profoundly mistaken. For the traditional jurist—and I believe Thayer stood in the great tradition—the propositions characteristic of legal realism are best understood as accurate observations of pitfalls to be avoided. Yes, for instance, judges have their biases, but the point is to discipline oneself to principled decision-making and guard against them. This is clearly the gravamen of Thayer’s most famous article, “Origin and Scope.”

Marc DeGirolami, in a review of Tamanaha’s book, fruitfully suggests a strong affinity of originalism to formalism, and of the “living Constitution” approach to realism. Porwancher and his co-authors evidently agree with this, several times claiming that Thayer was a devotee of the living Constitution, and referring to his “rejection of originalism,” which they profess to see in “his conviction that the Constitution was open to multiple interpretations.” But there is no incompatibility between the principled view that the Constitution has its own discernible original meaning—its own integrity, independent of the interpreter—and the sensible observation that good-faith interpreters can rationally come to different understandings of its meaning.

As I have argued at length elsewhere, Thayer’s “Origin and Scope” makes a principled case—based on the Constitution’s text, structure, and interpretive history—for a robust presumption of constitutionality, with judges deferring to legislative interpretation if there is any reasonable ground for it. Thayer here teaches an essentially functional differentiation of judicial from legislative responsibility—a differentiation that adherents of the “living Constitution” typically collapse. In the space that Thayer’s argument makes for legislative flexibility—the inverse of the constraint he places on the judiciary—he is in perfect accord with the teaching of John Marshall, than whom no jurist in our history was more originalist. (It is only by wrenching a few lines from their context in his 1819 opinion in McCulloch v. Maryland that the Great Chief Justice has been wrongly characterized as a living constitutionalist.)

Limited space here means that just two pieces of evidence will have to suffice to show that the authors have mistakenly ascribed the tenets of legal realism to Thayer. First, Porwancher et al. say that Thayer “criticized judges who spuriously denied that they legislated from the bench.” They continue:

That kind of judicial activism was “not quite in harmony with the general attitude of the common-law courts and their humble phraseology in disclaiming the office of legislation.” But in actuality, the need to adjudicate amid “ever-changing combinations of fact” forced the bench to “constantly legislate.” Rather than hide behind a false veneer of self-abnegation, “it is best that this be openly done” by judges.

These perfectly accurate quotations from Thayer’s Preliminary Treatise on Evidence at the Common Law (1898) nonetheless take on a somewhat different cast when presented more fully in their original setting. Thayer is remarking on the common-law development of a certain doctrine of evidence “by a direct application of maxims of justice,—”

a simple method, and worthy of any judicial tribunal which rises to the level of its great office; and yet not one quite in harmony with the general attitude of the common-law courts and their humble phraseology in disclaiming the office of legislation. But inasmuch as every body of men who undertake to administer the law must, in fitting it to the ever-changing combinations of fact that come before them, constantly legislate, incidentally and in a subsidiary way, it is best that this should be openly done; as it is in the cautious reaching out of the principle of estoppel. (emphasis added)

It is worth noting that Thayer’s context is the common law, where judicial “legislation” is less controversial than in statutory or constitutional interpretation. And it is not Thayer, the lifelong proponent of restraint, who praises “legislat[ing] from the bench” as “judicial activism” (a phrase no one used in his time). That is the construction put on his words by our authors. Thayer indeed seems content to recognize the general validity of the norm of judges’ “disclaiming the office of legislation.” He insists, however, on honest avowal from them when they legislate “incidentally and in a subsidiary way” by a “cautious reaching out” of this common-law principle or that (telling phrases left out by our authors). That this must be “constantly done” on such incidental and subsidiary questions does not mean that the wall comes down between legislating and judging on fundamental questions of law and policy.

So much for Thayer on the common law of evidence. In constitutional law, Thayer cleared no space whatever for judges to “legislate” even in a subsidiary way, and preached “self-abnegation.” Indeed, it should be plain to any reader of Thayer’s “Origin and Scope” that the tight strictures he insists upon for judicial decisions against the constitutionality of legislation simply cannot be derived from the tenets of legal realism, which were all about freeing judges from such constraints.

This brings me to the second piece of evidence that our authors have been turned around in the wrong direction in their understanding of Thayer. In their discussion of his student Louis Brandeis, Porwancher et al. remark that on the bench, “Brandeis’s commitment to restraint was not unconditional”—unlike Thayer’s, that is. Brandeis, they say, was “comfortable with an activist role for the judiciary in the protection of civil liberties.” And they venture the more than plausible thought that “Brandeis saw in Thayerian deference a useful tool to ensure that progressive legislators could experiment without interference from the bench.” In short, for Brandeis it was “Thayerian deference” when progressives legislated, and judicial activism when the forces of reaction threatened “civil liberties.” That’s not principled jurisprudence; it’s legal realism’s embrace of the judge as participant in social reform.

And the giveaway is that our authors cannot help but contrast Brandeis with his late teacher. Where Brandeis the legal realist could turn the deference on or off according to his ideological preferences, Thayer sternly taught an iron discipline in constitutional judging of holding one’s own views—even one’s conviction that one understood the Constitution better than the legislature did—firmly in check. And he taught this because he believed it was the only approach consistent with the Constitution’s text, purposes, structure, and traditional interpretation. This view made him the furthest thing imaginable from a “living Constitution” advocate in the Brandeis mold.

I am glad Andrew Porwancher and his former students have shone a spotlight on James Bradley Thayer. His restrained jurisprudence is due for a revival. But I view him as a rather different sort of prophet than they do—not as a seer forecasting the future of legal realism, but as a voice crying in the wilderness that his profession must bind itself to legal principles or else hasten the downfall of the rule of law and self-government alike.