Gunther Named to Endowed Chair

Gerald Gunther, one of the nation’s leading experts on constitutional law, has been appointed to the endowed William Nelson Cromwell professorship of law at Stanford, effective September 1. A faculty member since 1962, he will succeed Professor and former Dean Carl B. Spaeth who retires this year. Professor Gunther has just completed a history of the U.S. Supreme Court at the time of Chief Justice John Marshall as part of a multi-volume study commissioned under the Oliver Wendell Holmes devise. He is currently working on a biography of Judge Learned Hand. Professor Gunther was born in Usingen, Germany in 1927, received his bachelor of arts magna cum laude from Brooklyn College in 1949, hIS master of arts at Columbia in 1950 and his LL.B. at Harvard summa cum laude in 1953. He served as a clerk with Judge Hand during 1953-54 and with Chief Justice Earl Warren the following year. After a year in private practice in New York he joined the Columbia law faculty, where he was named a full professor in 1960. He will be the fifth holder of the Cromwell professorship. Established in 1948, it is named for a prominent New York attorney who provided its endowment. Previous holders were Marion Rice Kirkwood, former Law School dean, and Professors George E. Osborne and Harold Shepherd.

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A few months ago-more than three and a half decades after Justice Holmes’ death more than a decade after the undertaking was launched-the first two volumes of the projected 11-volume Oliver Wendell HoImes Devise History of the Supreme Court of the United States were published. Other volumes in the series are nearing completion at last, including one of my own. With the light at the end of the tunnel finally in sight, it may be appropriate to try to convey some sense of what it is like to write Supreme Court history. These reflections may at least give a clue about how I have been spending those hours not given to teaching, and worrying about disruptions and appointments, and writing on contemporary constitutional law, and preparing a Learned Hand biography. Perhaps, too, these thoughts will help explain why this “first comprehensive history” of the Court has been so long and painfully a-borning.

It all started with Justice Holmes’ will. The Justice was well known for his pithy opinions; I can only hope that he would have found more reason for laughter than wrath had he foreseen his responsibility for these elephantine tomes. All Holmes did was to leave his residuary estate to the United States outright. That generosity obviously bewildered the Government. Congress established a committee to consider the disposition of the bequest. Sporadic meetings over the years produced suggestions ranging from statuary in front of the Capitol to rose gardens in the back. Finally, in the fifties, a memorial was agreed on: Congress directed that the funding of a multi-volume Court history be the primary objective. The Permanent Committee for the Oliver Wendell Holmes Devise selected eight authors, with Professor Paul Freund of Harvard as Editor-in-Chief. I am responsible for two of the volumes: The Struggle for Nationalism: The Marshall Court, 1815-25, and The Challenge of Jacksonian Democracy: The Marshall Court, 1826-35.*

For more than ten years, then, we have been under way. The paths we have followed have been diverse, for the directions have not been confining. Our basic charge was that this “comprehensive, authoritative and interpretive” history be a “tri-focal” one: it was to concentrate on the work of the Court, and the impact of the political, economic and social setting on the Court, and the Court’s impact on that political, economic and social setting. That has left ample room for each author’s inclinations. It is not surprising, then, that the first two volumes are quite different from each other: and the ones to come will no doubt display substantial variations of their own.

My own efforts have brought many unanticipated joys and problems and surprises. And those efforts have carried me far and wide, physically and intellectually. Supreme Court history is of course above all court history. But this would have been a far easier task had I been able to confine my research to traditional legal materials. It has not turned out that way: I would estimate that, in the large mass of data I have gathered over the years, less than a fourth are obvious “legal” materials. There are of course the Court Reports; there are the letters of the Justices. There are also such sources as the manuscript case files of the Marshall Court-files that were not available to earlier writers and that have been filmed for me on 106 reels.

At the outset, I thought that these would be the bulk of my raw data. Earlier historians, I assumed, had adequately digested the collateral materials. I was soon disabused. For example, the monographs I had hoped to rely on for general background too often proved to be reinterpretations of limited data rather than comprehensive explorations of the raw materials. That has led me very far afield into efforts at reconstructing on my own, from original sources, such controversies as the 1824 election campaign and South Carolina’s nullification battle. These are issues only tangentially related to the work of the Court, to be sure; but I did not think I could focus on the Court without understanding the context fully, on my own.

That the general historical studies proved inadequate to my needs was not truly surprising, I suppose: those historians had looked at the data with questions different from my own, after all. I was less prepared to find that even the writers who had preceded me in focusing on the Marshall Court and its judges had left large masses of important materials untouched. In·retrospect, however, I can understand why previous work on the Marshall Court did not exhaust the sources. Historians such as Albert Beveridge and Charles Warren did most of their work in Washington, and they looked mainly at documents available in the immediate vicinity. And their written inquiries to other manuscript depositories did not begin to unearth the available riches, as indeed written inquiries would not today. Most manuscript libraries, I soon found out, are very inadequately catalogued; personal searches are essential to get at the hidden treasures.

And so I have spent a good deal of time traveling, especially up and down the east coast, selecting a library because I knew it had something of use to me, and going on from there to snoop in dusty basements and dark stacks. Invariably, that has brought the joy of discovery-and its gloomier by-product, the addition of masses of data somehow to be brought under control. Let me give some examples of these treasure-hunting forays.

There was that snowy winter in the Maryland Historical Society in Baltimore, for example. I knew that the Society owned some papers of William Wirt, the U.S. Attorney General from 1817 to 1829. During a near blizzard, with most of the staff absent, I was given the run of the stacks to get my own materials. I used the opportunity to explore the scattered unlabeled boxes. I stumbled on several cardboard cartons, peeked through the torn sides, and recognized the unmistakable handwriting of William Wirt. There were thousands of items in those dusty boxes-family letters, Court documents, client correspondence-a collection far more valuable than the previously known holdings. It was a great find, though not wholly painless: it kept me in Baltimore for an extra week. I called my wife one night to tell her, cheerfully, “Agnes died!” Agnes was one of Wirt’s many daughters, and he wrote with great frequency to every one in his family. I found it impossible to skip any of those letters, for amidst the usual paternal advice Wirt would comment on his professional activities. Agnes’s death meant one less correspondent; and I could not bring myself to mourn.

I recall another cardboard box, on another bottom shelf in the ational Archives in Washington. Supreme Court case papers had been moved from the Court to Archives a few years earlier. Most had been carefully organized, but a few boxes of seemingly unimportant miscellany were left unsorted. I looked through those and came across another unmistakable handwriting – this time, that of Henry Baldwin, a Jacksonian appointee to the Marshall Court. What the archivists had thought to be the illegible scribblings of a minor functionary turned out to be the argument notes of the Justiceargument notes which were amplified with his notations on conferences and on tentative votes by the Justices. The Baldwin papers are the only comprehensive set of conference notes for the Marshall Court, and they provide important amplifications and corrections of the official Reports.

A final example, this time from one of the best catalogued depositories of all, the Pierpont Morgan Library in New York. That library, unlike most, can afford the luxury of cataloguing most of its manuscripts individually. I found listings for three or four letters by Henry Wheaton, the Supreme Court Reporter and practitioner. I told the librarian how delighted I was to find them and he, a newcomer to the staff, said that in his initial tour of the basement he had come across several boxes with similar handwriting. Again, there were thousands of remarkable items, ranging from correspondence with the Justices to on-the-spot notes of Supreme Court arguments in Wheaton’s hand-a hand happily more legible than Wirt’s or Baldwin’s. The Library had acquired those years earlier, apparently as a favor by a Morgan descendant to a Wheaton descendant and not because of any belief that they were genuinely valuable. And for that reason, no one had ever bothered to take them out of uncatalogued storage.

Most visits to most libraries did not produce riches of that dimension, of course. But I recall no visit that did not uncover something unexpected and unknown and valuable. And the discoveries do not all take place in far-away basements. Much of the detective work comes while I pore over the materials at my desk. Anonymous essayists and unidentified correspondents are numerous. And frequently I have been able to put together the jigsaw puzzles that permit making confident attributions. A few years ago, I published some remarkable essays by John Marshall, written pseudnymously for the newspapers, defending McCulloch v. Maryland against Virginia attacks. That is only one example of success in identifying those mysterious “Constitutionalists” and “Hampdens” and indecipherable letterwriters.

But those discoveries inevitably carry burdens. All those treasures make for mountainous files that make the writing task all the more difficult. I have found it a difficult process, but I am slowly learning to tell the story without telling more than anyone is interested in knowing, without telling more than can fit into even two volumes. I have a complex story to tell; I know that no one else is likely to try to do the task as thoroughly again in the foreseeable future: yet I am trying to write for today s general reader, not primarily for the library shelf and posterity. And that means that, with every chapter, painful editing follows extensive writing, which. in turn is the culmination of brIngIng massive data under control, which in turn is the product of elaborate searches for materials.

Out of tribulations and byways like that, then, my volumes are finally emerging. It has been challenging and burdensome, exciting and exhausting, worrisome and satisfying. And, happily, the task of producing the best possible Marshall Court History has not meant total isolation from my other obligations and interests. Rather, it has been a surprisingly rich example of the seamless web. Most especially, it has enriched my teaching, in constitutional law classes and Supreme Court seminars.

My constitutional law course inevitably is more concerned with the Marshall Court than with any other historical period. Immersion in the Marshall Court, combined with the simultaneous attention to the Warren and Burger Courts that my casebook preparation and teaching require, have added important perspectives to my work on contemporary problems. And the Supreme Court seminar has given increasing attention to the Marshall Court over the years-largely because of student demand, even while I have bent over backwards to avoid inflicting my interests on a captive audience. During the last three years, for example, more than half of the seminar students have chosen to do research papers on Marshall Court history, though they are free to concentrate on contemporary problems· and they have welcomed the change of p’ace of doing original work with materials drawn largely from my files.

And student responsiveness is remarkably great in the basic courses as well: It was an infrequent bow to sheer antiquarianism that made me suggest a few weeks ago that since George Washington’s birthday was being celebrated on the 21st of February this year, the 22nd might be devoted to the memory of George’s nephew Bushrod, John Marshall’s colleague on the Supreme Court for 29 years. Several students immediately organized a Bushrod Washington party, complete with festive cake, decorations, and a reading of Washington letters by me. I am not certain about the magnitude of this Stanford contribution to the frontiers of legal education; but I am confident that no constitutional law students in American law school history have ever known so much about Justice Bushrod Washington. And I think I see continued appetite for unconquered terra incognita. One of my current stUdents, for example, has just produced some poetry to commemorate the birthday of a Marshall Court Justice even more obscure than the venerable Bushrod: at least one Stanford student, it seems, knows a good deal about Gabriel Duvall, a Justice whose imprints on history escaped even the systematic gaze of the editors of the Dictionary of American Biography!

In my more optimistic moments, I view those student responses as happy omens: when my volumes are ready for a larger audience, I dare hope, Marshall Court history will prove as fascinating to others as it surely has to a good number of us at Stanford.