September 17, 2025 • 32 mins
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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Episode Transcript
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Speaker 1 (00:00):
Happy Constitution Day everyone.
I feel like at this point thisis just our resident scholar
author, because this is now whatyour fourth time on the podcast
, dr Porancher, it is.
I just I learned so much fromyou.
I mean, I get to work with youand then we get to have these
talks and I'm really interestedto talk about this book because
(00:23):
the writing of it is a littledifferent than the ones we have
talked about.
So, dr Porwenscher, can youtell us a little bit about this
book and kind of about how theauthorship came to be?
Speaker 2 (00:37):
To be short.
Well, it's always a pleasure tobe on the pod, it's great to
work with you and it's great tobe able to have these
conversations and share themwith your audience.
So I really appreciate gettingto come back on with some
regularity.
And I'm especially excited totalk about this project, partly
because it speaks to my interestin students and mentorship.
(00:59):
This project originally startedwhen I was at the University of
Oklahoma, where I spent thefirst 12 years of my faculty
life before I was fortunate tocome here to Arizona State
University and you know, likeASU, oklahoma is a large state
university, not nearly as big asASU, but a large state
university with a lot of reallyhigh performing students
(01:26):
students.
And you know we're fortunate atplaces like ASU and Oklahoma to
get students who could goanywhere, and they choose
because of scholarship, money,proximity to home, because of
particular strengths in certainprograms that a large university
might have come to theseinstitutions.
And so when you're a professorat a place like Oklahoma or ASU,
you quickly learn that yourbest undergrads are as good as
(01:47):
the students you can findanywhere in the country, and I
was so impressed with the highcaliber of the students at
Oklahoma and I had thought thatwith guidance, they would be
capable of producing publishablework, work that could survive
the scrutiny of peer review onacademic topics.
(02:09):
And I decided to test thattheory, and I asked three of my
best students.
One of them went on to Yale Law,one of them went on to
University of Cambridge for gradschool and another became the
first Luce scholar from Oklahomain a decade the first loose
scholar from Oklahoma in adecade and I asked them to join
me on a book project, not asresearch assistants but as
(02:35):
full-fledged co-authors.
And the subject of the book wasthe life and legacy of a 19th
century legal figure named JamesBradley Thayer, who was a
professor at Harvard Law, and heexercised profound influence
over his protégés, over thestudents there who would go on
to become leading figures on thebench on the Supreme Court in
legal academia.
And so it was a book by aprofessor and his former
(02:57):
students, about a professor andhis former students, perhaps too
on the nose, but we proceededapace regardless, and it was
really a rewarding exercise forme to get to work with these
really sharp young people andteach them the craft of
producing historical scholarship.
So the project was a blast towork on, and I'm really glad
(03:20):
that we have a book to show forit.
Speaker 1 (03:23):
And that's such a cool thing that again, they're
not research assistants, theyare authors on this and that's.
I mean I think that just speaksto who you are too, but I mean
I know as a grad student rightnow, like that's a really big
deal.
So we're talking about JamesBradley Thayer and his
mentorship and his teaching.
So how did his mentorship andteaching shape the careers of
(03:46):
his students and kind ofultimately American legal
thought, can you share someexamples of how his influence is
seen in modern law?
Speaker 2 (03:56):
Sure, thayer's influence in modern law, I think
, is pervasive but discreet inmany ways, because he didn't sit
on the bench which affords highvisibility and concrete power,
and he wasn't terriblywell-published.
He was always sacrificing histime publishing towards helping
(04:18):
other scholars with theirpublishing and even more so
towards preparing for class,toward investing in students,
and so his impact you're notgoing to find it in you know
canonical legal treatises.
You're not going to find it injudicial opinions that he wrote.
He never donned judicial robes.
(04:39):
Where you have to find it is inthe archive, in the personal
correspondence, in themarginalia of the student
textbooks of the future judgesthat he taught, and that is
where you see this profoundimpact that thayer had.
He was beloved as a professorand and the word beloved really
(05:00):
doesn't do it justice he wasrevered as almost a quasi
religious figure.
The book is called the prophetof harvard law, james bradley,
thayer's legal legacy, becausehis students would use the word
prophet to describe him.
You know, one of them describedan article he wrote as his
alpha and omega, and so youoften see you know another one,
(05:22):
um described, uh, thayer as hisfather confessor, and this
student described himself as aquote disciple, and so they are
constantly referring to him inthis overtly religious language.
They saw him as more than justa mentor.
He's almost thisquasi-religious figure, this
demigod handing down revealedtruth.
(05:43):
Such was the depth of reverencethat they had for James Bradley
Thayer, and the particularphilosophy of law that they
internalized is known as legalrealism.
What Thayer taught was that thelaw is far too complex and
indeterminate and rife withincongruity to be characterized
(06:08):
with facile legal principlesthat can be applied
syllogistically.
Bayer rejected the idea thatyou can treat legal cases almost
like a geometric proof.
The world was just far toomessy for that kind of facile
approach, and so, in legalrealist fashion, he taught that,
(06:31):
yes, there are legal principles, but they are flexible
guidelines that have toaccommodate unforeseen
exigencies.
He stressed that the law is ahuman creation that can be
subject to fallibility and mayneed correction through the
democratic process, and, most ofall, he emphasized the
(06:52):
importance of judicial restraint.
For Thayer, the paramountprinciple of a democracy was
self-government.
The highest expression ofdemocracy was the people,
through their electedlegislatures, passing laws that
govern their lives and theirliberties, and he thought that
(07:13):
unelected judges should be verywary of voiding legislation
passed by the people'srepresentatives, except in rare
cases where it is beyondrational question that the law
is unconstitutional.
His view is that the questionbefore a judge when considering
the constitutionality of astatute was not whether the
(07:36):
judge thought it comported withthe constitution, but whether
any judge rationally could, andso there was a really low bar
that legislators had to meetbecause they were accountable to
the voters in ways that judgeswere not, and that lesson about
the import of judicial restraintwas the core lesson that so
(08:00):
many of his protégésinternalized and then applied
themselves when they assumedtheir privilege purchase on the
Supreme Court and otherinfluential courts.
Speaker 1 (08:13):
So you talked about judicial restraint, right.
What is kind of?
What's another side of that?
Theories out there that, likethe court should be changing
laws, because I know, likejudicial restraint is, just like
you said, under very fewcircumstances should that be.
What is kind of the I don'twant to say opposite, but I
(08:37):
don't know what the word I'mlooking for is.
Speaker 2 (08:40):
Sure, I mean, there are people who would advocate
that a you know, let me put itthis way.
I think you could find peoplesuggesting that judges should
enjoy more latitude than Thayerwould have, that you should have
a degree of judicial activismfrom the bench.
(09:00):
One of the criticisms ofThayer's ideas in his own day
was that if the bench is overlydeferential to lawmakers in all
instances, you could have asituation where you have a
tyranny of the majority, wheredemocratic majorities pass laws
that encroach on the fundamentalliberties of minorities.
(09:23):
And you know there is thisfundamental tension in American
democracy and I always talkabout this in my constitutional
history classes with students.
We have, on the one hand, thisparamount principle of majority
rule that's central to democracy, but we also have these
counter-majoritarian libertiesfreedom of speech, freedom of
religion, you know, your rightto due process in a criminal
(09:45):
trial.
That you know.
The list goes on in the Bill ofRights, and these rights are not
subject to the whims oflegislative majorities.
And Thayer's ideas werecritiqued because some people
felt that you do want a moreactivist judiciary when it comes
to safeguarding individualliberties.
(10:05):
Now again, thayer didn'tpublish very much and his key
contribution to his theory ofjudicial restraint consisted
really of one relatively shortlaw review article, and it would
ultimately be up to latergenerations to refine his ideas
and figure out how to advanceThayerian ideals of restraint,
(10:29):
but also try to reconcile themwith the notion that the
judiciary might have a specialrole to play in safeguarding
individual rights.
Speaker 1 (10:40):
So you talked about how Thayer was, you know, known
for working closely with hisstudents and maintaining kind of
this active, likecorrespondence.
Do we know what teachingmethods or mentorship practices
um he employed to make him soinspiring and such an effective
teacher?
Speaker 2 (11:00):
well they are dressed .
A few things.
One was the importance ofbalance.
So he would tell students,don't work yourself to death.
You should have intervals ofsound sleep, of rest, of
relaxation, of sociability andyou should apply your efforts
(11:24):
diligently.
And so there are some studentsyou know, you can, you can
imagine an incoming cohort atHarvard Law probably still today
might benefit from a kind ofTherian admonition about
work-life balance.
Um, you know, some students, uh, don't need as much
encouragement on the life partas others.
(11:44):
I have found, um, but some do,uh.
He also kind of got changed overtime and so initially he leaned
more into legal treatises, butover time he became a fan of
what became known as the casemethod of instruction.
That is still used today in lawschool.
(12:05):
It was really being pioneeredby the dean of Harvard Law at
the time that Thayer was sittingon the faculty in the latter
quarter of the 19th century.
And there you're reading casesand you are inferring principles
from the raw material of thecase law instead of just reading
a scholarly commentary aboutwhat cases say.
(12:25):
And so it's a much more active,participatory form of legal
education and it rests on theSocratic method, on the
professor interrogating thestudents.
Now they would lecture, butover time we see him lean more
into a Q&A style.
(12:46):
That has become a staple for ushere at the School of Civic and
Economic Thought and Leadership.
We pride ourselves on ourSocratic seminars, as you well
know.
So Judy's really, you know,appreciated that approach.
And then there was thoseineffable, intangible,
(13:12):
intangible interpersonalqualities of his he.
He had a warmth, a generosityof spirit and an intellectual
honesty that the students foundthemselves drawn to, and student
after student who, would youknow, praise?
The faculty at large alwayssingled Thayer as the first
among equals.
Louis Brandeis, the futureSupreme Court Justice, described
(13:36):
Thayer as his quote best friendon the faculty when he was at
Harvard Law.
And so there is this deeppersonal connection that he
develops with these studentsthat earned him their affection.
Speaker 1 (13:56):
So kind of on that same topic then you know this
book is a joint effort with youand former students.
What do you see as the benefitsand challenges of co-authoring
such kind of this importanthistorical work with your
students, and how do you feellike this process kind of
reflected Thayer's own style ofmentorship?
Speaker 2 (14:19):
Yeah, well, I, you know.
I guess I'll leave it to myco-authors, perhaps in other
venues, to decide whether I'mThayerian or not, but I think
that part of the challenge isand I'm really sympathetic to my
co-authors, jake, austin andTaylor, who were so sharp at
(14:40):
throwing anybody into theintricacies of 19th century law
when none of these people hadgone to law school yeah, only
one of them actually ended upgoing to law school.
You know that was challenging.
You know, another challengethat they may not have expected
was just reading the handwriting.
It takes a long time todecipher some of the handwriting
(15:01):
from these 19th century figures.
And also, you know, there's abig difference between producing
a paper that's going to get an,a plus with a star as an
undergrad and producingsomething that is going to
survive the rigors of peerreview at a university press and
getting.
(15:21):
You know, I and you know all ofthese students have gotten
feedback for me on papers, butthey had gotten feedback for me
as a professor getting feedbackto a student, and now, for the
first time, in the process ofworking on this book, they were
getting feedback from me as acolleague, giving them the kind
of constructive criticism thatthey needed to ensure that this
(15:44):
book could actually get a bookdeal and find its way into its
covers.
Book could actually get a bookdeal and find its way into its
covers.
There was also the challenge of, I think, psychologically
preparing them for the peerreview process.
Peer review can be brutal and,I think, unnecessarily so.
I'm a big believer that peerreview can have a lot of benefit
(16:07):
.
You know, this is the processfor those listeners who may be
less familiar with academiawherein a book manuscript or a
journal article is sent out toexperts in the field, and with
books it's usually single blind.
So the reviewers, theseprofessors at other universities
who have subject matterexpertise in whatever your book
is about, they will know who youare, but you will not know who
(16:29):
they are unless they choose toreveal themselves, which
sometimes they do but often theydon't, and that anonymity can
sometimes give rise to criticismthat is unhelpfully harsh and
at this point I've been doingthis job for a while.
I'm dating myself here, butI've been a professor for 15
(16:50):
years and I've gotten enoughfirst peer review that you
become a little bit numb to itand you just try to figure out
okay, what can I pull out ofthis?
That's constructive.
And you know you put your egoto the side, but for a
first-time scholar, getting peerreview for the first time and
(17:11):
seeing their work ripped apartunparallel can be.
It can really rock you.
And so I, you know, walkedthrough with my co-authors when
we would get peer review.
You know, here's why thiscriticism was unfair to you.
Or here's something that couldbe valuable, that we could apply
.
Or you know, here's a commentthat you shouldn't give too much
(17:37):
credence to.
Or you know, here's a criticismand here's a way that we can
adapt it, because maybe thiscriticism we think is unfair,
but maybe it was made in goodfaith and it means that we
didn't do a good enough job ofarticulating our point here to
clarify our language.
And so I tried to give them aboost in terms of validating
that what you've done isworthwhile.
And this is the nature of peerreview and you can take it in
(18:00):
stride.
And one of my student co-authorssaid to me I'm really glad the
first time I'm going throughthis process is with you.
The first time I'm goingthrough this process is with you
.
And so you know all of that waswere unique challenges that you
know I wouldn't have otherwisein working on a book on my own,
and then part of it was also.
You know, this is the firsttime I co-authored a book.
(18:21):
All of my other books are soloenterprises, which is more
common in the humanities, and sotrying to impose on the book a
coherence of voice was anotherchallenge, and that's where I
needed to come in as the kind ofsuperintending force to make
sure that all of these differentchapters fit together
(18:42):
thematically and that there wassome kind of consistency in the
prose and the style, to give thebook a kind of single authorial
voice.
So it was definitely a uniquechallenge and one of the more
rewarding ones I've done in mycareer.
Speaker 1 (18:58):
I think that accepting any kind of criticism
on writing, that's a life skillright, and how beneficial for
your students to again gothrough that, because it's not a
fun process, but you do, youget used to it and you start to
just figure out what's going tobe 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 myfirst peer review process with
(19:24):
you know, with a mentor, with aprofessor, because how valuable
is that now for those students?
So why do you think thatThayer's stories and
contributions are still relevanttoday, especially if we're
looking at, you know, studentswho are interested in legal
history or education or theshaping of American law and
(19:45):
rights?
Speaker 2 (19:48):
Yeah, I think he's hugely relevant when you think
about the law in terms of thesenetworks of intellectual
patronage, in terms ofintergenerational mentorship.
You had somebody like you know,felix Frankfurter, who revered
(20:11):
Brandeis and Brandeis hadstudied at Thayer's feet.
Frankfurter has been cited bythe likes of our current Chief
Justice as a kind of you knowlegal lodestar in some of his
own thinking about judicialrestraint.
And so when you look at a caselike you know, it was a big deal
(20:32):
at the time.
A lot's happened in Americanhistory since you know the early
aughts.
But the Affordable Pair Actcase, whether the Supreme Court
was going to strike that down ornot, that was the big question
at the time.
And John Roberts, who writesthe majority opinion in that
case, says it is not the role ofthis court to save the American
people from their politicalchoices, meaning if Americans
(20:55):
elected Congress and Congresspassed the Affordable Care Act
and the people don't like that,then they need to send new
representatives to repeal thelaw.
And so you know, regardless ofyou know whether any given
listener likes that piece oflegislation or not, I think the
point stands that what Robertswrote was Thayerism par
excellence, and that's comingfrom a chief justice.
(21:17):
Who's looking to Frank Furter?
Who's looking to Brandeis?
Who's looking to Thayer?
Roberts was only three stepsremoved from James Bradley
Thayer.
I mean it's a reminder of justhow recent Thayer is in history,
even if it feels a littledistant to us because it's out
of living memory.
It's really just a coupledegrees of separation.
(21:39):
The question of judicialrestraint and the proper
relationship between Congressand the Supreme Court is a
perennial one, and what'sinteresting about Thayer is that
he advanced into this idea ofjudicial restraint as part of a
legal philosophy for the ages.
He is not an instrumentalist inthe sense that he is not trying
(22:02):
to use this judicial philosophyto arrive at some sort of
predetermined political outcomethat he wants to see from the
courts In the immediate wake ofhis death, at a time when
legislatures state and nationalwere doing more progressive
things and the judiciary wasmore conservative.
(22:24):
You see the progressives becomechampions of terrorism, but
that flip-flops after World WarII, where you have a more
progressive Supreme Court, theWarren Court, and then you have
conservatives saying no, we needjudicial restraint.
And now we're in this reallyinteresting moment where
(22:45):
conservatives have been talkingabout the importance of judicial
restraint for a long time andconservatives now have a
dominant majority on the SupremeCourt like they haven't had for
a very long time, and it isinteresting to see some
conservative legal scholarsadvance a different view than
(23:08):
judicial restraint what'ssometimes known as common good
constitutionalism.
And there are people on the leftwho came of age in the wake of
the Warren Court and had reallyinternalized this idea that you
want an activist judiciary tosafeguard people's rights, and
(23:28):
all of a sudden, I think they'restarting to flirt with a
version of judicial restraintthat they would have been less
enamored of, you know, a coupledecades ago.
And so it is interesting to seethe ways that theorism can
become popular among people onthe left or people on the right,
(23:49):
depending on the contingenciesof the moment, and part of what
my students and I wanted to doin this book is both rescue him
from the vicissitudes of thesepolitical debates and show that
there is a principled approachto law that can transcend the
(24:10):
transient, you know, politicaldivisions of any given moment,
and yet, at the same time, showhow his ideas can continue to
have modern relevance, and aslong as people are debating
whether judges should beexercising more power or less,
(24:30):
fair is going to be relevant,and I suspect that that is a
debate that will endure as longas this republic.
Speaker 1 (24:37):
So I think my last question, then is you know
there's so many people inhistory to write about, right?
What is it that, personally foryou, drew you to fair story
specifically, and you know forour listeners, what lessons do
you want them to kind of takeaway from this, whether it's
(24:57):
about mentorship, legalscholarship, evolution of you
know, legal education?
Speaker 2 (25:07):
what do you want our listeners to kind of walk away
with?
Well, I was drawn to this bookbecause I had originally written
my dissertation when I was ingrad school about one of
Thayer's protégés who was namedJohn Henry Widmore.
He became the dean atNorthwestern Law and he became
the dominant figure in shapingevidence law the law that
governs how jury trials areconducted and I was always
(25:29):
really interested in jury trialsbecause I think they're really
fascinating and they're alsowindows into how a society
thinks about the distinctionbetween truth and falsehood,
which is always relevant, eventoday, especially today.
So I had come to Thayer by wayof this fellow Wigmore, and in
(25:50):
reading about legal history thistime period, it turned out that
one major figure after the nextOliver Wendell Holmes, louis
Brandeis, felix FrankfurterLearned Hand, who's the most
famous judge in American historyto have never sat on the US
Supreme Court.
All of these peoplehero-worshipped this one guy,
james Bradley Thayer, and yet noone had ever done a book on him
(26:11):
, and so I've been sittingaround waiting for the book that
would uncover the godfather ofmodern American law and limb his
profound influence on thefuture judges and legal scholars
who would shape American law aswe still know it today.
(26:34):
And I realized after a decadeplus that if I didn't do this
book myself, I might be waitingthe rest of my career and it
might never appear.
And I was having lunch with oneof these students who would
become a co-author of mine and Isaid you know, do you think I
could ever write a book that'sco-authored with students as
(26:55):
part of a collective enterprise?
He's like yeah, it sounds likea good idea.
I don't know if he realized Iwas about to rope him in the
following day with an emailbeing like well, what about you
and your friends?
So I mean, all these studentsknow each other.
They're all good friends.
So that's how it really gotstarted.
And I think, in terms of what Ihope people can take away from
the book, it is that we so oftenlook to footnotes and judicial
(27:21):
opinions to think aboutinfluence.
You know we have this system ofstare decisis right, which
means let the decision standWherein one case cites another
case, that cites another case,and you get this lineage of
cases and they're supposed to becoherent and, yes, the law
shifts sort of slowly over timeand it is important to look at
(27:43):
cases.
I assign a lot of cases in myclasses.
I write about cases in theThayer book and in my other
scholarship, but if we only lookat cases, we are missing so
much of the story of howAmerican law changes.
The law is fundamentally a humanendeavor.
(28:05):
Gowns and sitting on the benchand handing down opinions were
once young folks in theirformative years nervously taking
notes in a Harvard Law Schoolclassroom, and we have to
understand them at thatformative moment in their life
if we are to make sense of themomentous opinions that they
(28:29):
would hand down decades laterthat govern our lives and our
liberties today.
And so my ambition is thatpeople will walk away from this
book realizing that behind ourlegal doctrine are deeply
personal stories about humanbeings with all of their
(28:52):
potential, with all of theirfallibility, and they're big to
form connections with oneanother.
And it's not the sort of thingI'll be candid that you're going
to learn a lot about in atypical law school classroom.
But I'm a historian, not alawyer, and so I get to get away
with writing books like this,and so it's really been a
(29:13):
privilege to get to work withthese really bright young
aspiring scholars on a book likethis, and it's a privilege to
get to chat with you and talk toyour listeners and your
audience about it.
Speaker 1 (29:26):
Well, and I think when we think about Constitution
Day, you know people thinkabout when the Constitution was
signed, and I love that we'vedecided to, kind of, because I
think that's something thatconnects you and I.
We love history, we love thestories behind it, and we get to
celebrate this Constitution Daywith a story about the
Constitution and about theapplication of law, and I love
(29:48):
that.
This is about mentorship andit's about you know they are
working with students and youworking with students, because
education is something thatconnects us.
So, dr Porwancher, I mean weshould just start our own series
at this point because it's sofun to chat with you.
Thank you so much and again forour listeners, the book is
(30:08):
called the Prophet of HarvardLaw, james Bradley Thayer, and
His Legal Legacy, dr Perwanter,you're amazing, thank you.
Speaker 2 (30:16):
Thank you, liz, always a pleasure.
Happy Constitution Day everyone.
I feel like at this point thisis just our resident scholar
author, because this is now whatyour fourth time on the podcast
, dr Porancher, it is.
I just I learned so much fromyou.
I mean, I get to work with youand then we get to have these
talks and I'm really interestedto talk about this book because
(00:23):
the writing of it is a littledifferent than the ones we have
talked about.
So, dr Porwenscher, can youtell us a little bit about this
book and kind of about how theauthorship came to be?
Speaker 2 (00:37):
To be short.
Well, it's always a pleasure tobe on the pod, it's great to
work with you and it's great tobe able to have these
conversations and share themwith your audience.
So I really appreciate gettingto come back on with some
regularity.
And I'm especially excited totalk about this project, partly
because it speaks to my interestin students and mentorship.
(00:59):
This project originally startedwhen I was at the University of
Oklahoma, where I spent thefirst 12 years of my faculty
life before I was fortunate tocome here to Arizona State
University and you know, likeASU, oklahoma is a large state
university, not nearly as big asASU, but a large state
university with a lot of reallyhigh performing students
(01:26):
students.
And you know we're fortunate atplaces like ASU and Oklahoma to
get students who could goanywhere, and they choose
because of scholarship, money,proximity to home, because of
particular strengths in certainprograms that a large university
might have come to theseinstitutions.
And so when you're a professorat a place like Oklahoma or ASU,
you quickly learn that yourbest undergrads are as good as
(01:47):
the students you can findanywhere in the country, and I
was so impressed with the highcaliber of the students at
Oklahoma and I had thought thatwith guidance, they would be
capable of producing publishablework, work that could survive
the scrutiny of peer review onacademic topics.
(02:09):
And I decided to test thattheory, and I asked three of my
best students.
One of them went on to Yale Law,one of them went on to
University of Cambridge for gradschool and another became the
first Luce scholar from Oklahomain a decade the first loose
scholar from Oklahoma in adecade and I asked them to join
me on a book project, not asresearch assistants but as
(02:35):
full-fledged co-authors.
And the subject of the book wasthe life and legacy of a 19th
century legal figure named JamesBradley Thayer, who was a
professor at Harvard Law, and heexercised profound influence
over his protégés, over thestudents there who would go on
to become leading figures on thebench on the Supreme Court in
legal academia.
And so it was a book by aprofessor and his former
(02:57):
students, about a professor andhis former students, perhaps too
on the nose, but we proceededapace regardless, and it was
really a rewarding exercise forme to get to work with these
really sharp young people andteach them the craft of
producing historical scholarship.
So the project was a blast towork on, and I'm really glad
(03:20):
that we have a book to show forit.
Speaker 1 (03:23):
And that's such a cool thing that again, they're
not research assistants, theyare authors on this and that's.
I mean I think that just speaksto who you are too, but I mean
I know as a grad student rightnow, like that's a really big
deal.
So we're talking about JamesBradley Thayer and his
mentorship and his teaching.
So how did his mentorship andteaching shape the careers of
(03:46):
his students and kind ofultimately American legal
thought, can you share someexamples of how his influence is
seen in modern law?
Speaker 2 (03:56):
Sure, thayer's influence in modern law, I think
, is pervasive but discreet inmany ways, because he didn't sit
on the bench which affords highvisibility and concrete power,
and he wasn't terriblywell-published.
He was always sacrificing histime publishing towards helping
(04:18):
other scholars with theirpublishing and even more so
towards preparing for class,toward investing in students,
and so his impact you're notgoing to find it in you know
canonical legal treatises.
You're not going to find it injudicial opinions that he wrote.
He never donned judicial robes.
(04:39):
Where you have to find it is inthe archive, in the personal
correspondence, in themarginalia of the student
textbooks of the future judgesthat he taught, and that is
where you see this profoundimpact that thayer had.
He was beloved as a professorand and the word beloved really
(05:00):
doesn't do it justice he wasrevered as almost a quasi
religious figure.
The book is called the prophetof harvard law, james bradley,
thayer's legal legacy, becausehis students would use the word
prophet to describe him.
You know, one of them describedan article he wrote as his
alpha and omega, and so youoften see you know another one,
(05:22):
um described, uh, thayer as hisfather confessor, and this
student described himself as aquote disciple, and so they are
constantly referring to him inthis overtly religious language.
They saw him as more than justa mentor.
He's almost thisquasi-religious figure, this
demigod handing down revealedtruth.
(05:43):
Such was the depth of reverencethat they had for James Bradley
Thayer, and the particularphilosophy of law that they
internalized is known as legalrealism.
What Thayer taught was that thelaw is far too complex and
indeterminate and rife withincongruity to be characterized
(06:08):
with facile legal principlesthat can be applied
syllogistically.
Bayer rejected the idea thatyou can treat legal cases almost
like a geometric proof.
The world was just far toomessy for that kind of facile
approach, and so, in legalrealist fashion, he taught that,
(06:31):
yes, there are legal principles, but they are flexible
guidelines that have toaccommodate unforeseen
exigencies.
He stressed that the law is ahuman creation that can be
subject to fallibility and mayneed correction through the
democratic process, and, most ofall, he emphasized the
(06:52):
importance of judicial restraint.
For Thayer, the paramountprinciple of a democracy was
self-government.
The highest expression ofdemocracy was the people,
through their electedlegislatures, passing laws that
govern their lives and theirliberties, and he thought that
(07:13):
unelected judges should be verywary of voiding legislation
passed by the people'srepresentatives, except in rare
cases where it is beyondrational question that the law
is unconstitutional.
His view is that the questionbefore a judge when considering
the constitutionality of astatute was not whether the
(07:36):
judge thought it comported withthe constitution, but whether
any judge rationally could, andso there was a really low bar
that legislators had to meetbecause they were accountable to
the voters in ways that judgeswere not, and that lesson about
the import of judicial restraintwas the core lesson that so
(08:00):
many of his protégésinternalized and then applied
themselves when they assumedtheir privilege purchase on the
Supreme Court and otherinfluential courts.
Speaker 1 (08:13):
So you talked about judicial restraint, right.
What is kind of?
What's another side of that?
Theories out there that, likethe court should be changing
laws, because I know, likejudicial restraint is, just like
you said, under very fewcircumstances should that be.
What is kind of the I don'twant to say opposite, but I
(08:37):
don't know what the word I'mlooking for is.
Speaker 2 (08:40):
Sure, I mean, there are people who would advocate
that a you know, let me put itthis way.
I think you could find peoplesuggesting that judges should
enjoy more latitude than Thayerwould have, that you should have
a degree of judicial activismfrom the bench.
(09:00):
One of the criticisms ofThayer's ideas in his own day
was that if the bench is overlydeferential to lawmakers in all
instances, you could have asituation where you have a
tyranny of the majority, wheredemocratic majorities pass laws
that encroach on the fundamentalliberties of minorities.
(09:23):
And you know there is thisfundamental tension in American
democracy and I always talkabout this in my constitutional
history classes with students.
We have, on the one hand, thisparamount principle of majority
rule that's central to democracy, but we also have these
counter-majoritarian libertiesfreedom of speech, freedom of
religion, you know, your rightto due process in a criminal
(09:45):
trial.
That you know.
The list goes on in the Bill ofRights, and these rights are not
subject to the whims oflegislative majorities.
And Thayer's ideas werecritiqued because some people
felt that you do want a moreactivist judiciary when it comes
to safeguarding individualliberties.
(10:05):
Now again, thayer didn'tpublish very much and his key
contribution to his theory ofjudicial restraint consisted
really of one relatively shortlaw review article, and it would
ultimately be up to latergenerations to refine his ideas
and figure out how to advanceThayerian ideals of restraint,
(10:29):
but also try to reconcile themwith the notion that the
judiciary might have a specialrole to play in safeguarding
individual rights.
Speaker 1 (10:40):
So you talked about how Thayer was, you know, known
for working closely with hisstudents and maintaining kind of
this active, likecorrespondence.
Do we know what teachingmethods or mentorship practices
um he employed to make him soinspiring and such an effective
teacher?
Speaker 2 (11:00):
well they are dressed .
A few things.
One was the importance ofbalance.
So he would tell students,don't work yourself to death.
You should have intervals ofsound sleep, of rest, of
relaxation, of sociability andyou should apply your efforts
(11:24):
diligently.
And so there are some studentsyou know, you can, you can
imagine an incoming cohort atHarvard Law probably still today
might benefit from a kind ofTherian admonition about
work-life balance.
Um, you know, some students, uh, don't need as much
encouragement on the life partas others.
(11:44):
I have found, um, but some do,uh.
He also kind of got changed overtime and so initially he leaned
more into legal treatises, butover time he became a fan of
what became known as the casemethod of instruction.
That is still used today in lawschool.
(12:05):
It was really being pioneeredby the dean of Harvard Law at
the time that Thayer was sittingon the faculty in the latter
quarter of the 19th century.
And there you're reading casesand you are inferring principles
from the raw material of thecase law instead of just reading
a scholarly commentary aboutwhat cases say.
(12:25):
And so it's a much more active,participatory form of legal
education and it rests on theSocratic method, on the
professor interrogating thestudents.
Now they would lecture, butover time we see him lean more
into a Q&A style.
(12:46):
That has become a staple for ushere at the School of Civic and
Economic Thought and Leadership.
We pride ourselves on ourSocratic seminars, as you well
know.
So Judy's really, you know,appreciated that approach.
And then there was thoseineffable, intangible,
(13:12):
intangible interpersonalqualities of his he.
He had a warmth, a generosityof spirit and an intellectual
honesty that the students foundthemselves drawn to, and student
after student who, would youknow, praise?
The faculty at large alwayssingled Thayer as the first
among equals.
Louis Brandeis, the futureSupreme Court Justice, described
(13:36):
Thayer as his quote best friendon the faculty when he was at
Harvard Law.
And so there is this deeppersonal connection that he
develops with these studentsthat earned him their affection.
Speaker 1 (13:56):
So kind of on that same topic then you know this
book is a joint effort with youand former students.
What do you see as the benefitsand challenges of co-authoring
such kind of this importanthistorical work with your
students, and how do you feellike this process kind of
reflected Thayer's own style ofmentorship?
Speaker 2 (14:19):
Yeah, well, I, you know.
I guess I'll leave it to myco-authors, perhaps in other
venues, to decide whether I'mThayerian or not, but I think
that part of the challenge isand I'm really sympathetic to my
co-authors, jake, austin andTaylor, who were so sharp at
(14:40):
throwing anybody into theintricacies of 19th century law
when none of these people hadgone to law school yeah, only
one of them actually ended upgoing to law school.
You know that was challenging.
You know, another challengethat they may not have expected
was just reading the handwriting.
It takes a long time todecipher some of the handwriting
(15:01):
from these 19th century figures.
And also, you know, there's abig difference between producing
a paper that's going to get an,a plus with a star as an
undergrad and producingsomething that is going to
survive the rigors of peerreview at a university press and
getting.
(15:21):
You know, I and you know all ofthese students have gotten
feedback for me on papers, butthey had gotten feedback for me
as a professor getting feedbackto a student, and now, for the
first time, in the process ofworking on this book, they were
getting feedback from me as acolleague, giving them the kind
of constructive criticism thatthey needed to ensure that this
(15:44):
book could actually get a bookdeal and find its way into its
covers.
Book could actually get a bookdeal and find its way into its
covers.
There was also the challenge of, I think, psychologically
preparing them for the peerreview process.
Peer review can be brutal and,I think, unnecessarily so.
I'm a big believer that peerreview can have a lot of benefit
(16:07):
.
You know, this is the processfor those listeners who may be
less familiar with academiawherein a book manuscript or a
journal article is sent out toexperts in the field, and with
books it's usually single blind.
So the reviewers, theseprofessors at other universities
who have subject matterexpertise in whatever your book
is about, they will know who youare, but you will not know who
(16:29):
they are unless they choose toreveal themselves, which
sometimes they do but often theydon't, and that anonymity can
sometimes give rise to criticismthat is unhelpfully harsh and
at this point I've been doingthis job for a while.
I'm dating myself here, butI've been a professor for 15
(16:50):
years and I've gotten enoughfirst peer review that you
become a little bit numb to itand you just try to figure out
okay, what can I pull out ofthis?
That's constructive.
And you know you put your egoto the side, but for a
first-time scholar, getting peerreview for the first time and
(17:11):
seeing their work ripped apartunparallel can be.
It can really rock you.
And so I, you know, walkedthrough with my co-authors when
we would get peer review.
You know, here's why thiscriticism was unfair to you.
Or here's something that couldbe valuable, that we could apply
.
Or you know, here's a commentthat you shouldn't give too much
(17:37):
credence to.
Or you know, here's a criticismand here's a way that we can
adapt it, because maybe thiscriticism we think is unfair,
but maybe it was made in goodfaith and it means that we
didn't do a good enough job ofarticulating our point here to
clarify our language.
And so I tried to give them aboost in terms of validating
that what you've done isworthwhile.
And this is the nature of peerreview and you can take it in
(18:00):
stride.
And one of my student co-authorssaid to me I'm really glad the
first time I'm going throughthis process is with you.
The first time I'm goingthrough this process is with you
.
And so you know all of that waswere unique challenges that you
know I wouldn't have otherwisein working on a book on my own,
and then part of it was also.
You know, this is the firsttime I co-authored a book.
(18:21):
All of my other books are soloenterprises, which is more
common in the humanities, and sotrying to impose on the book a
coherence of voice was anotherchallenge, and that's where I
needed to come in as the kind ofsuperintending force to make
sure that all of these differentchapters fit together
(18:42):
thematically and that there wassome kind of consistency in the
prose and the style, to give thebook a kind of single authorial
voice.
So it was definitely a uniquechallenge and one of the more
rewarding ones I've done in mycareer.
Speaker 1 (18:58):
I think that accepting any kind of criticism
on writing, that's a life skillright, and how beneficial for
your students to again gothrough that, because it's not a
fun process, but you do, youget used to it and you start to
just figure out what's going tobe 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 myfirst peer review process with
(19:24):
you know, with a mentor, with aprofessor, because how valuable
is that now for those students?
So why do you think thatThayer's stories and
contributions are still relevanttoday, especially if we're
looking at, you know, studentswho are interested in legal
history or education or theshaping of American law and
(19:45):
rights?
Speaker 2 (19:48):
Yeah, I think he's hugely relevant when you think
about the law in terms of thesenetworks of intellectual
patronage, in terms ofintergenerational mentorship.
You had somebody like you know,felix Frankfurter, who revered
(20:11):
Brandeis and Brandeis hadstudied at Thayer's feet.
Frankfurter has been cited bythe likes of our current Chief
Justice as a kind of you knowlegal lodestar in some of his
own thinking about judicialrestraint.
And so when you look at a caselike you know, it was a big deal
(20:32):
at the time.
A lot's happened in Americanhistory since you know the early
aughts.
But the Affordable Pair Actcase, whether the Supreme Court
was going to strike that down ornot, that was the big question
at the time.
And John Roberts, who writesthe majority opinion in that
case, says it is not the role ofthis court to save the American
people from their politicalchoices, meaning if Americans
(20:55):
elected Congress and Congresspassed the Affordable Care Act
and the people don't like that,then they need to send new
representatives to repeal thelaw.
And so you know, regardless ofyou know whether any given
listener likes that piece oflegislation or not, I think the
point stands that what Robertswrote was Thayerism par
excellence, and that's comingfrom a chief justice.
(21:17):
Who's looking to Frank Furter?
Who's looking to Brandeis?
Who's looking to Thayer?
Roberts was only three stepsremoved from James Bradley
Thayer.
I mean it's a reminder of justhow recent Thayer is in history,
even if it feels a littledistant to us because it's out
of living memory.
It's really just a coupledegrees of separation.
(21:39):
The question of judicialrestraint and the proper
relationship between Congressand the Supreme Court is a
perennial one, and what'sinteresting about Thayer is that
he advanced into this idea ofjudicial restraint as part of a
legal philosophy for the ages.
He is not an instrumentalist inthe sense that he is not trying
(22:02):
to use this judicial philosophyto arrive at some sort of
predetermined political outcomethat he wants to see from the
courts In the immediate wake ofhis death, at a time when
legislatures state and nationalwere doing more progressive
things and the judiciary wasmore conservative.
(22:24):
You see the progressives becomechampions of terrorism, but
that flip-flops after World WarII, where you have a more
progressive Supreme Court, theWarren Court, and then you have
conservatives saying no, we needjudicial restraint.
And now we're in this reallyinteresting moment where
(22:45):
conservatives have been talkingabout the importance of judicial
restraint for a long time andconservatives now have a
dominant majority on the SupremeCourt like they haven't had for
a very long time, and it isinteresting to see some
conservative legal scholarsadvance a different view than
(23:08):
judicial restraint what'ssometimes known as common good
constitutionalism.
And there are people on the leftwho came of age in the wake of
the Warren Court and had reallyinternalized this idea that you
want an activist judiciary tosafeguard people's rights, and
(23:28):
all of a sudden, I think they'restarting to flirt with a
version of judicial restraintthat they would have been less
enamored of, you know, a coupledecades ago.
And so it is interesting to seethe ways that theorism can
become popular among people onthe left or people on the right,
(23:49):
depending on the contingenciesof the moment, and part of what
my students and I wanted to doin this book is both rescue him
from the vicissitudes of thesepolitical debates and show that
there is a principled approachto law that can transcend the
(24:10):
transient, you know, politicaldivisions of any given moment,
and yet, at the same time, showhow his ideas can continue to
have modern relevance, and aslong as people are debating
whether judges should beexercising more power or less,
(24:30):
fair is going to be relevant,and I suspect that that is a
debate that will endure as longas this republic.
Speaker 1 (24:37):
So I think my last question, then is you know
there's so many people inhistory to write about, right?
What is it that, personally foryou, drew you to fair story
specifically, and you know forour listeners, what lessons do
you want them to kind of takeaway from this, whether it's
(24:57):
about mentorship, legalscholarship, evolution of you
know, legal education?
Speaker 2 (25:07):
what do you want our listeners to kind of walk away
with?
Well, I was drawn to this bookbecause I had originally written
my dissertation when I was ingrad school about one of
Thayer's protégés who was namedJohn Henry Widmore.
He became the dean atNorthwestern Law and he became
the dominant figure in shapingevidence law the law that
governs how jury trials areconducted and I was always
(25:29):
really interested in jury trialsbecause I think they're really
fascinating and they're alsowindows into how a society
thinks about the distinctionbetween truth and falsehood,
which is always relevant, eventoday, especially today.
So I had come to Thayer by wayof this fellow Wigmore, and in
(25:50):
reading about legal history thistime period, it turned out that
one major figure after the nextOliver Wendell Holmes, louis
Brandeis, felix FrankfurterLearned Hand, who's the most
famous judge in American historyto have never sat on the US
Supreme Court.
All of these peoplehero-worshipped this one guy,
james Bradley Thayer, and yet noone had ever done a book on him
(26:11):
, and so I've been sittingaround waiting for the book that
would uncover the godfather ofmodern American law and limb his
profound influence on thefuture judges and legal scholars
who would shape American law aswe still know it today.
(26:34):
And I realized after a decadeplus that if I didn't do this
book myself, I might be waitingthe rest of my career and it
might never appear.
And I was having lunch with oneof these students who would
become a co-author of mine and Isaid you know, do you think I
could ever write a book that'sco-authored with students as
(26:55):
part of a collective enterprise?
He's like yeah, it sounds likea good idea.
I don't know if he realized Iwas about to rope him in the
following day with an emailbeing like well, what about you
and your friends?
So I mean, all these studentsknow each other.
They're all good friends.
So that's how it really gotstarted.
And I think, in terms of what Ihope people can take away from
the book, it is that we so oftenlook to footnotes and judicial
(27:21):
opinions to think aboutinfluence.
You know we have this system ofstare decisis right, which
means let the decision standWherein one case cites another
case, that cites another case,and you get this lineage of
cases and they're supposed to becoherent and, yes, the law
shifts sort of slowly over timeand it is important to look at
(27:43):
cases.
I assign a lot of cases in myclasses.
I write about cases in theThayer book and in my other
scholarship, but if we only lookat cases, we are missing so
much of the story of howAmerican law changes.
The law is fundamentally a humanendeavor.
(28:05):
Gowns and sitting on the benchand handing down opinions were
once young folks in theirformative years nervously taking
notes in a Harvard Law Schoolclassroom, and we have to
understand them at thatformative moment in their life
if we are to make sense of themomentous opinions that they
(28:29):
would hand down decades laterthat govern our lives and our
liberties today.
And so my ambition is thatpeople will walk away from this
book realizing that behind ourlegal doctrine are deeply
personal stories about humanbeings with all of their
(28:52):
potential, with all of theirfallibility, and they're big to
form connections with oneanother.
And it's not the sort of thingI'll be candid that you're going
to learn a lot about in atypical law school classroom.
But I'm a historian, not alawyer, and so I get to get away
with writing books like this,and so it's really been a
(29:13):
privilege to get to work withthese really bright young
aspiring scholars on a book likethis, and it's a privilege to
get to chat with you and talk toyour listeners and your
audience about it.
Speaker 1 (29:26):
Well, and I think when we think about Constitution
Day, you know people thinkabout when the Constitution was
signed, and I love that we'vedecided to, kind of, because I
think that's something thatconnects you and I.
We love history, we love thestories behind it, and we get to
celebrate this Constitution Daywith a story about the
Constitution and about theapplication of law, and I love
(29:48):
that.
This is about mentorship andit's about you know they are
working with students and youworking with students, because
education is something thatconnects us.
So, dr Porwancher, I mean weshould just start our own series
at this point because it's sofun to chat with you.
Thank you so much and again forour listeners, the book is
(30:08):
called the Prophet of HarvardLaw, james Bradley Thayer, and
His Legal Legacy, dr Perwanter,you're amazing, thank you.
Speaker 2 (30:16):
Thank you, liz, always a pleasure.
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