201. Private closet, public fantasy

Members of the Supreme Court - especially Justices Stevens and Scalia - are very big on appeals to history.  They're constantly talking about "the Framers" while being coy about who those people actually were.  (see post 79.)   And, in the manner of the lazy pop historian who tells us what some historical personage "must have been thinking" and "no doubt felt", the justices are quick to tell us that "the Framers were no more willing" to do one thing than another, and "the Framers certainly would not have condoned" something else. 

One distinguishing characteristic of lazy pop historians is their sentimentality, and the justices spread the schmalz thickly all over the past.  (See post 30 and post 192.)  One reason for this is that they draw their ideas from such an extremely narrow range of sources, principally those few appellate court opinions that have been transmitted down to us, and the words of those few cranky egotists who thought posterity deserved the benefit of their recorded thoughts.

For example, when Justice Thomas wanted some lessons from history about the way felons were sentenced when the Constitution was being drafted, he looked at appellate opinions from half a century later, explaining in a footnote that he (meaning his Federalist Society clerks) couldn't find any appellate opinions closer in time.  You might think that examining the press releases of appellate courts is a somewhat indirect way to look at what was happening in jails and county courthouses, but apparently it's the only way the clerks know.

But the main reason for the haze of sentimentality, the vaseline-on-the-lens soft focus of the justices' faux-history, is that they're really writing about themselves.  For both Scalia and Stevens, and for every other judge who pretends to draw lessons from history, the past is a place where everyone agrees with you.  

So it's good to be reminded from time to time that real people lived in the past, too.  They weren't all cartoons.  From a biography of that great English magistrate, Henry Fielding, comes this description of one of his predecessors in office:

[Sir Thomas] De Veil kept a private closet for the judicial examination of women and boasted his ability of being 'diligent and expeditious in doing a lady's business for her.'  He was known for his 'knack at coming at kept mistresses'.  When a female defendant caught his fancy, he took care that the case was settled before him on easy terms.  Then, 'he would enquire of the fair criminal, if she had not a back-door to her lodging, where a chair might stop without suspicion? at what season her friend was out of town or engaged? and when an amicable visit might be received without interception?'  He looks out from his portrait by De La Cour as a well-fleshed man with sharp eyes and an air of vigour.  He was routinely corrupt in taking money ...  In 1747 he issued a manual for magistrates called Observations on the Practice of a Justice of the Peace.  He advised his colleagues to take only the fees and what he called vaguely 'Perquisites' to which their office entitled them, and always to receive the money through the clerks as a matter of dignity.

In case you're wondering whether the perquisites of judicial office have changed much in the past 250 years, the answer, I'm afraid, can be found by following this link.  And this one.  These examples are aberrations, in more ways than one, but it would be foolish to imagine all such cases become public.

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