Maeva Marcus has taken over as the new general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, the Library of Congress and the Permanent Committee of the Oliver Wendell Holmes Devise recently announced. In this role, she will focus on completing a vision for a history of the Supreme Court that in some respects goes back to 1935, when retired Justice Oliver Wendell Holmes died two days short of his ninety-fourth birthday. Holmes bequeathed some funds to friends and family and left his papers to Harvard Law School, but he also donated $263,000 (over $3.7 million in today’s dollars) to the federal treasury – at that time, the largest such gift ever.

Holmes’s gift reflected his belief in in public service and the general goodness of the state. In an 1884 speech, for example, Holmes had encouraged others “to recall what our country has done for each of us, and to ask ourselves what we can do for our country in return.”

President Franklin Roosevelt called for the funds to be dedicated to “some purpose worthy of the great man who gave it,” but suggestions of a volume of Holmes’s writings and a garden in Washington, D.C., went unfulfilled. Twenty years later, Congress finally passed a statute establishing the Oliver Wendell Holmes Devise Fund and a permanent four-person committee to guide the preparation of a history of the Supreme Court. The committee quickly adopted an ambitious plan: a twelve-volume comprehensive explanation of Supreme Court history, each written by a distinguished scholar and mostly divided according to the tenures of the different Chief Justices (up to the retirement of Chief Justice Charles Evans Hughes in 1941). Justice Felix Frankfurter, although not a committee member, assumed an active role in both recruiting the first editor of the Devise – Harvard Law School’s Paul Freund – and selecting its first authors.

The original goal for completion was four years, but further delays set in almost immediately. The first two volumes did not appear until 1971, fifteen years later, and initial scholarly reception was lukewarm. After the 1976 publication of the volume on the Taney Court, Mark Tushnet suggested that “[t]he time has come to blow the whistle on the Holmes Devise History of The Supreme Court.”

The Devise has suffered from political forgetfulness and abandonment. For instance, the four-person “permanent” committee sat completely unfilled for essentially the entire tenure of Bill Clinton’s presidency. A White House staffer with a personal interest in the Court’s history – she was also pursuing a PhD – finally convinced the president to act, and Clinton filled one spot on his final day in office. His choice? Maeva Marcus, who served on the committee until 2009.

Today, three volumes remain outstanding. Tushnet, despite his criticisms forty years ago, expects to finish his volume on the Hughes Court next year. Renowned scholar Alexander Bickel was first assigned a volume on the Taft Court, but did not complete it before his sudden death in 1974; Robert Post, who will step down as dean at Yale Law School in 2017, hopes to finish this volume with John Witt, another Yale scholar. Harvard Law School’s Morton Horwitz will complete the thirteenth volume – added to the original plan for twelve – on the Warren Court.

According to Marcus, there are no current plans to add a volume on the Burger Court or any others. The money, she explained, has mostly run out, and she jokes that she does “not have a clue how it was ever invested,” because the Library of Congress is responsible for the project’s finances.

Owing in part to the sixty-year span over which scholars have worked on these volumes, the different works reflect changing historical approaches. Rachel Moran, a committee member and law professor at UCLA, says that earlier authors – as was common then – took a more strictly political approach, treating “law as a self-contained universe.” In terms of writing style, scholar Richard Paschal notes, they “favored encyclopedic treatments which were long on coverage and sources and yet short on synthesis and analysis.”

In a change that Paschal attributes to outgoing editor Stanley Katz, recent volumes have adopted a more expansive approach, looking not only at cases and politics of a particular era but also at the Court in a broader context. In this vein, Tushnet regards the project’s organization by the tenure of the various Chief Justices as “a little artificial”; in his volume on the Hughes Court, he hopes to focus more on themes than chronology.

In addition to her academic scholarship, Marcus pursues a personal mission to “bring awareness of the Court to a broader public.” She told me she first realized this need while editing the eight-volume Documentary History of the Supreme Court of the United States, 1789-1800, which chronicles the development of the federal judiciary system in its first decade. While completing that project, Marcus discovered that “no one knew anything” about constitutional history at history departments in universities across America, and she became determined to “get people educated on what’s involved” at the Supreme Court and in American law more generally.

Holmes may not have expected his funds to remain unused eighty years after his death, but as the Devise finally comes to completion, and with Marcus installed as editor, it seems that it will be worth the wait.

Posted in What's Happening Now, Supreme Court history

Recommended Citation: Andrew Hamm, New editor Maeva Marcus hopes to move the Holmes Devise towards completion, SCOTUSblog (Jul. 5, 2016, 5:44 PM),