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Arizona Civics Podcast
Welcome to the Arizona Civics Podcast. This podcast aims to share our journey of sustaining Arizona’s interests in reforms to civic education by working with civic educators in our state. This work is being done by the Center for American Civics at Arizona State University. I am your host, Liz Evans, Civic Education and Outreach Program Director at ASU, and I will interview Arizona teachers, content experts, and leaders in civic education. We hope you enjoy our journey to make Arizona a national civics model!
Arizona Civics Podcast
The Godfather of Modern Law: James Bradley Thayer's Hidden Influence
Dr. Porwancher takes us on a fascinating journey through the hidden influence of James Bradley Thayer, a Harvard Law professor whose mentorship shaped America's legal giants like Louis Brandeis, Oliver Wendell Holmes, and Felix Frankfurter. What makes this exploration particularly special is its creation – a collaborative book co-authored with former students, mirroring Thayer's own dedication to mentorship and student development.
At the heart of Thayer's legacy lies his philosophy of judicial restraint – the revolutionary idea that unelected judges should defer to democratically elected legislatures except in the most egregious constitutional violations. This principle resonates through generations of American jurisprudence, with Chief Justice John Roberts channeling this very philosophy when he wrote that "it is not the role of this court to save the American people from their political choices." The intellectual lineage from Thayer to Roberts spans just three degrees of separation, demonstrating how profoundly one professor's teachings can echo through centuries of legal thought.
What's particularly striking about Thayer's approach is how it transcends partisan politics. His philosophy has been embraced by progressives and conservatives alike at different historical moments, depending on who controls the judiciary. This cyclical pattern reveals a fundamental truth about American constitutional governance – the tension between democratic majorities and counter-majoritarian rights protection. Through vivid stories of Thayer's teaching methods and the almost religious reverence his students held for him, we discover how the formative experiences of young law students eventually shape the monumental decisions that govern our lives and liberties today. Beyond just legal doctrine, this conversation reminds us that behind every Supreme Court opinion lies a deeply human story of mentorship, influence, and intellectual inheritance.
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Happy Constitution Day everyone. I feel like at this point this is just our resident scholar author, because this is now what your fourth time on the podcast, dr Porancher, it is. I just I learned so much from you. I mean, I get to work with you and then we get to have these talks and I'm really interested to talk about this book because the writing of it is a little different than the ones we have talked about. So, dr Porwenscher, can you tell us a little bit about this book and kind of about how the authorship came to be?
Speaker 2:To be short. Well, it's always a pleasure to be on the pod, it's great to work with you and it's great to be able to have these conversations and share them with your audience. So I really appreciate getting to come back on with some regularity. And I'm especially excited to talk about this project, partly because it speaks to my interest in students and mentorship. This project originally started when I was at the University of Oklahoma, where I spent the first 12 years of my faculty life before I was fortunate to come here to Arizona State University and you know, like ASU, oklahoma is a large state university, not nearly as big as ASU, but a large state university with a lot of really high performing students students. And you know we're fortunate at places like ASU and Oklahoma to get students who could go anywhere, and they choose because of scholarship, money, proximity to home, because of particular strengths in certain programs that a large university might have come to these institutions. And so when you're a professor at a place like Oklahoma or ASU, you quickly learn that your best undergrads are as good as the students you can find anywhere in the country, and I was so impressed with the high caliber of the students at Oklahoma and I had thought that with guidance, they would be capable of producing publishable work, work that could survive the scrutiny of peer review on academic topics.
Speaker 2:And I decided to test that theory, and I asked three of my best students.
Speaker 2:One of them went on to Yale Law, one of them went on to University of Cambridge for grad school and another became the first Luce scholar from Oklahoma in a decade the first loose scholar from Oklahoma in a decade and I asked them to join me on a book project, not as research assistants but as full-fledged co-authors. And the subject of the book was the life and legacy of a 19th century legal figure named James Bradley Thayer, who was a professor at Harvard Law, and he exercised profound influence over his protégés, over the students there who would go on to become leading figures on the bench on the Supreme Court in legal academia. And so it was a book by a professor and his former students, about a professor and his former students, perhaps too on the nose, but we proceeded apace regardless, and it was really a rewarding exercise for me to get to work with these really sharp young people and teach them the craft of producing historical scholarship. So the project was a blast to work on, and I'm really glad that we have a book to show for it.
Speaker 1:And that's such a cool thing that again, they're not research assistants, they are authors on this and that's. I mean I think that just speaks to who you are too, but I mean I know as a grad student right now, like that's a really big deal. So we're talking about James Bradley Thayer and his mentorship and his teaching. So how did his mentorship and teaching shape the careers of his students and kind of ultimately American legal thought, can you share some examples of how his influence is seen in modern law?
Speaker 2:Sure, thayer's influence in modern law, I think, is pervasive but discreet in many ways, because he didn't sit on the bench which affords high visibility and concrete power, and he wasn't terribly well-published. He was always sacrificing his time publishing towards helping other scholars with their publishing and even more so towards preparing for class, toward investing in students, and so his impact you're not going to find it in you know canonical legal treatises. You're not going to find it in judicial opinions that he wrote. He never donned judicial robes. Where you have to find it is in the archive, in the personal correspondence, in the marginalia of the student textbooks of the future judges that he taught, and that is where you see this profound impact that thayer had. He was beloved as a professor and and the word beloved really doesn't do it justice he was revered as almost a quasi religious figure. The book is called the prophet of harvard law, james bradley, thayer's legal legacy, because his students would use the word prophet to describe him. You know, one of them described an article he wrote as his alpha and omega, and so you often see you know another one, um described, uh, thayer as his father confessor, and this student described himself as a quote disciple, and so they are constantly referring to him in this overtly religious language. They saw him as more than just a mentor. He's almost this quasi-religious figure, this demigod handing down revealed truth. Such was the depth of reverence that they had for James Bradley Thayer, and the particular philosophy of law that they internalized is known as legal realism.
Speaker 2:What Thayer taught was that the law is far too complex and indeterminate and rife with incongruity to be characterized with facile legal principles that can be applied syllogistically. Bayer rejected the idea that you can treat legal cases almost like a geometric proof. The world was just far too messy for that kind of facile approach, and so, in legal realist fashion, he taught that, yes, there are legal principles, but they are flexible guidelines that have to accommodate unforeseen exigencies. He stressed that the law is a human creation that can be subject to fallibility and may need correction through the democratic process, and, most of all, he emphasized the importance of judicial restraint.
Speaker 2:For Thayer, the paramount principle of a democracy was self-government. The highest expression of democracy was the people, through their elected legislatures, passing laws that govern their lives and their liberties, and he thought that unelected judges should be very wary of voiding legislation passed by the people's representatives, except in rare cases where it is beyond rational question that the law is unconstitutional. His view is that the question before a judge when considering the constitutionality of a statute was not whether the judge thought it comported with the constitution, but whether any judge rationally could, and so there was a really low bar that legislators had to meet because they were accountable to the voters in ways that judges were not, and that lesson about the import of judicial restraint was the core lesson that so many of his protégés internalized and then applied themselves when they assumed their privilege purchase on the Supreme Court and other influential courts.
Speaker 1:So you talked about judicial restraint, right. What is kind of? What's another side of that? Theories out there that, like the court should be changing laws, because I know, like judicial restraint is, just like you said, under very few circumstances should that be. What is kind of the I don't want to say opposite, but I don't know what the word I'm looking for is.
Speaker 2:Sure, I mean, there are people who would advocate that a you know, let me put it this way. I think you could find people suggesting that judges should enjoy more latitude than Thayer would have, that you should have a degree of judicial activism from the bench. One of the criticisms of Thayer's ideas in his own day was that if the bench is overly deferential to lawmakers in all instances, you could have a situation where you have a tyranny of the majority, where democratic majorities pass laws that encroach on the fundamental liberties of minorities. And you know there is this fundamental tension in American democracy and I always talk about this in my constitutional history classes with students. We have, on the one hand, this paramount principle of majority rule that's central to democracy, but we also have these counter-majoritarian liberties freedom of speech, freedom of religion, you know, your right to due process in a criminal trial. That you know.
Speaker 2:The list goes on in the Bill of Rights, and these rights are not subject to the whims of legislative majorities. And Thayer's ideas were critiqued because some people felt that you do want a more activist judiciary when it comes to safeguarding individual liberties. Now again, thayer didn't publish very much and his key contribution to his theory of judicial restraint consisted really of one relatively short law review article, and it would ultimately be up to later generations to refine his ideas and figure out how to advance Thayerian ideals of restraint, but also try to reconcile them with the notion that the judiciary might have a special role to play in safeguarding individual rights.
Speaker 1:So you talked about how Thayer was, you know, known for working closely with his students and maintaining kind of this active, like correspondence. Do we know what teaching methods or mentorship practices um he employed to make him so inspiring and such an effective teacher?
Speaker 2:well they are dressed. A few things. One was the importance of balance. So he would tell students, don't work yourself to death. You should have intervals of sound sleep, of rest, of relaxation, of sociability and you should apply your efforts diligently. And so there are some students you know, you can, you can imagine an incoming cohort at Harvard Law probably still today might benefit from a kind of Therian admonition about work-life balance. Um, you know, some students, uh, don't need as much encouragement on the life part as others. I have found, um, but some do, uh.
Speaker 2:He also kind of got changed over time and so initially he leaned more into legal treatises, but over time he became a fan of what became known as the case method of instruction. That is still used today in law school. It was really being pioneered by the dean of Harvard Law at the time that Thayer was sitting on the faculty in the latter quarter of the 19th century. And there you're reading cases and you are inferring principles from the raw material of the case law instead of just reading a scholarly commentary about what cases say. And so it's a much more active, participatory form of legal education and it rests on the Socratic method, on the professor interrogating the students. Now they would lecture, but over time we see him lean more into a Q&A style.
Speaker 2:That has become a staple for us here at the School of Civic and Economic Thought and Leadership. We pride ourselves on our Socratic seminars, as you well know. So Judy's really, you know, appreciated that approach. And then there was those ineffable, intangible, intangible interpersonal qualities of his he. He had a warmth, a generosity of spirit and an intellectual honesty that the students found themselves drawn to, and student after student who, would you know, praise? The faculty at large always singled Thayer as the first among equals. Louis Brandeis, the future Supreme Court Justice, described Thayer as his quote best friend on the faculty when he was at Harvard Law. And so there is this deep personal connection that he develops with these students that earned him their affection.
Speaker 1:So kind of on that same topic then you know this book is a joint effort with you and former students. What do you see as the benefits and challenges of co-authoring such kind of this important historical work with your students, and how do you feel like this process kind of reflected Thayer's own style of mentorship?
Speaker 2:Yeah, well, I, you know. I guess I'll leave it to my co-authors, perhaps in other venues, to decide whether I'm Thayerian or not, but I think that part of the challenge is and I'm really sympathetic to my co-authors, jake, austin and Taylor, who were so sharp at throwing anybody into the intricacies of 19th century law when none of these people had gone to law school yeah, only one of them actually ended up going to law school. You know that was challenging. You know, another challenge that they may not have expected was just reading the handwriting. It takes a long time to decipher some of the handwriting from these 19th century figures. And also, you know, there's a big difference between producing a paper that's going to get an, a plus with a star as an undergrad and producing something that is going to survive the rigors of peer review at a university press and getting. You know, I and you know all of these students have gotten feedback for me on papers, but they had gotten feedback for me as a professor getting feedback to a student, and now, for the first time, in the process of working on this book, they were getting feedback from me as a colleague, giving them the kind of constructive criticism that they needed to ensure that this book could actually get a book deal and find its way into its covers. Book could actually get a book deal and find its way into its covers. There was also the challenge of, I think, psychologically preparing them for the peer review process. Peer review can be brutal and, I think, unnecessarily so.
Speaker 2:I'm a big believer that peer review can have a lot of benefit. You know, this is the process for those listeners who may be less familiar with academia wherein a book manuscript or a journal article is sent out to experts in the field, and with books it's usually single blind. So the reviewers, these professors at other universities who have subject matter expertise in whatever your book is about, they will know who you are, but you will not know who they are unless they choose to reveal themselves, which sometimes they do but often they don't, and that anonymity can sometimes give rise to criticism that is unhelpfully harsh and at this point I've been doing this job for a while. I'm dating myself here, but I've been a professor for 15 years and I've gotten enough first peer review that you become a little bit numb to it and you just try to figure out okay, what can I pull out of this? That's constructive. And you know you put your ego to the side, but for a first-time scholar, getting peer review for the first time and seeing their work ripped apart unparallel can be. It can really rock you.
Speaker 2:And so I, you know, walked through with my co-authors when we would get peer review. You know, here's why this criticism was unfair to you. Or here's something that could be valuable, that we could apply. Or you know, here's a comment that you shouldn't give too much credence to. Or you know, here's a criticism and here's a way that we can adapt it, because maybe this criticism we think is unfair, but maybe it was made in good faith and it means that we didn't do a good enough job of articulating our point here to clarify our language. And so I tried to give them a boost in terms of validating that what you've done is worthwhile. And this is the nature of peer review and you can take it in stride.
Speaker 2:And one of my student co-authors said to me I'm really glad the first time I'm going through this process is with you. The first time I'm going through this process is with you. And so you know all of that was were unique challenges that you know I wouldn't have otherwise in working on a book on my own, and then part of it was also. You know, this is the first time I co-authored a book. All of my other books are solo enterprises, which is more common in the humanities, and so trying to impose on the book a coherence of voice was another challenge, and that's where I needed to come in as the kind of superintending force to make sure that all of these different chapters fit together thematically and that there was some kind of consistency in the prose and the style, to give the book a kind of single authorial voice. So it was definitely a unique challenge and one of the more rewarding ones I've done in my career.
Speaker 1:I think that accepting any kind of criticism on writing, that's a life skill right, and how beneficial for your students to again go through that, because it's not a fun process, but you do, you get used to it and you start to just figure out what's going to be helpful and what can I just put in my back pocket. So that's I mean. I think it's. I wish I had gone through my first peer review process with you know, with a mentor, with a professor, because how valuable is that now for those students? So why do you think that Thayer's stories and contributions are still relevant today, especially if we're looking at, you know, students who are interested in legal history or education or the shaping of American law and rights?
Speaker 2:Yeah, I think he's hugely relevant when you think about the law in terms of these networks of intellectual patronage, in terms of intergenerational mentorship. You had somebody like you know, felix Frankfurter, who revered Brandeis and Brandeis had studied at Thayer's feet. Frankfurter has been cited by the likes of our current Chief Justice as a kind of you know legal lodestar in some of his own thinking about judicial restraint. And so when you look at a case like you know, it was a big deal at the time. A lot's happened in American history since you know the early aughts. But the Affordable Pair Act case, whether the Supreme Court was going to strike that down or not, that was the big question at the time. And John Roberts, who writes the majority opinion in that case, says it is not the role of this court to save the American people from their political choices, meaning if Americans elected Congress and Congress passed the Affordable Care Act and the people don't like that, then they need to send new representatives to repeal the law. And so you know, regardless of you know whether any given listener likes that piece of legislation or not, I think the point stands that what Roberts wrote was Thayerism par excellence, and that's coming from a chief justice. Who's looking to Frank Furter? Who's looking to Brandeis? Who's looking to Thayer? Roberts was only three steps removed from James Bradley Thayer. I mean it's a reminder of just how recent Thayer is in history, even if it feels a little distant to us because it's out of living memory. It's really just a couple degrees of separation.
Speaker 2:The question of judicial restraint and the proper relationship between Congress and the Supreme Court is a perennial one, and what's interesting about Thayer is that he advanced into this idea of judicial restraint as part of a legal philosophy for the ages. He is not an instrumentalist in the sense that he is not trying to use this judicial philosophy to arrive at some sort of predetermined political outcome that he wants to see from the courts In the immediate wake of his death, at a time when legislatures state and national were doing more progressive things and the judiciary was more conservative. You see the progressives become champions of terrorism, but that flip-flops after World War II, where you have a more progressive Supreme Court, the Warren Court, and then you have conservatives saying no, we need judicial restraint. And now we're in this really interesting moment where conservatives have been talking about the importance of judicial restraint for a long time and conservatives now have a dominant majority on the Supreme Court like they haven't had for a very long time, and it is interesting to see some conservative legal scholars advance a different view than judicial restraint what's sometimes known as common good constitutionalism.
Speaker 2:And there are people on the left who came of age in the wake of the Warren Court and had really internalized this idea that you want an activist judiciary to safeguard people's rights, and all of a sudden, I think they're starting to flirt with a version of judicial restraint that they would have been less enamored of, you know, a couple decades ago. And so it is interesting to see the ways that theorism can become popular among people on the left or people on the right, depending on the contingencies of the moment, and part of what my students and I wanted to do in this book is both rescue him from the vicissitudes of these political debates and show that there is a principled approach to law that can transcend the transient, you know, political divisions of any given moment, and yet, at the same time, show how his ideas can continue to have modern relevance, and as long as people are debating whether judges should be exercising more power or less, fair is going to be relevant, and I suspect that that is a debate that will endure as long as this republic.
Speaker 1:So I think my last question, then is you know there's so many people in history to write about, right? What is it that, personally for you, drew you to fair story specifically, and you know for our listeners, what lessons do you want them to kind of take away from this, whether it's about mentorship, legal scholarship, evolution of you know, legal education?
Speaker 2:what do you want our listeners to kind of walk away with? Well, I was drawn to this book because I had originally written my dissertation when I was in grad school about one of Thayer's protégés who was named John Henry Widmore. He became the dean at Northwestern Law and he became the dominant figure in shaping evidence law the law that governs how jury trials are conducted and I was always really interested in jury trials because I think they're really fascinating and they're also windows into how a society thinks about the distinction between truth and falsehood, which is always relevant, even today, especially today. So I had come to Thayer by way of this fellow Wigmore, and in reading about legal history this time period, it turned out that one major figure after the next Oliver Wendell Holmes, louis Brandeis, felix Frankfurter Learned Hand, who's the most famous judge in American history to have never sat on the US Supreme Court. All of these people hero-worshipped this one guy, james Bradley Thayer, and yet no one had ever done a book on him, and so I've been sitting around waiting for the book that would uncover the godfather of modern American law and limb his profound influence on the future judges and legal scholars who would shape American law as we still know it today. And I realized after a decade plus that if I didn't do this book myself, I might be waiting the rest of my career and it might never appear. And I was having lunch with one of these students who would become a co-author of mine and I said you know, do you think I could ever write a book that's co-authored with students as part of a collective enterprise? He's like yeah, it sounds like a good idea. I don't know if he realized I was about to rope him in the following day with an email being like well, what about you and your friends? So I mean, all these students know each other. They're all good friends. So that's how it really got started.
Speaker 2:And I think, in terms of what I hope people can take away from the book, it is that we so often look to footnotes and judicial opinions to think about influence. You know we have this system of stare decisis right, which means let the decision stand Wherein one case cites another case, that cites another case, and you get this lineage of cases and they're supposed to be coherent and, yes, the law shifts sort of slowly over time and it is important to look at cases. I assign a lot of cases in my classes. I write about cases in the Thayer book and in my other scholarship, but if we only look at cases, we are missing so much of the story of how American law changes.
Speaker 2:The law is fundamentally a human endeavor.
Speaker 2:Gowns and sitting on the bench and handing down opinions were once young folks in their formative years nervously taking notes in a Harvard Law School classroom, and we have to understand them at that formative moment in their life if we are to make sense of the momentous opinions that they would hand down decades later that govern our lives and our liberties today. And so my ambition is that people will walk away from this book realizing that behind our legal doctrine are deeply personal stories about human beings with all of their potential, with all of their fallibility, and they're big to form connections with one another. And it's not the sort of thing I'll be candid that you're going to learn a lot about in a typical law school classroom. But I'm a historian, not a lawyer, and so I get to get away with writing books like this, and so it's really been a privilege to get to work with these really bright young aspiring scholars on a book like this, and it's a privilege to get to chat with you and talk to your listeners and your audience about it.
Speaker 1:Well, and I think when we think about Constitution Day, you know people think about when the Constitution was signed, and I love that we've decided to, kind of, because I think that's something that connects you and I. We love history, we love the stories behind it, and we get to celebrate this Constitution Day with a story about the Constitution and about the application of law, and I love that. This is about mentorship and it's about you know they are working with students and you working with students, because education is something that connects us. So, dr Porwancher, I mean we should just start our own series at this point because it's so fun to chat with you. Thank you so much and again for our listeners, the book is called the Prophet of Harvard Law, james Bradley Thayer, and His Legal Legacy, dr Perwanter, you're amazing, thank you.
Speaker 2:Thank you, liz, always a pleasure.
