Lecture by Philip P. Frickey
I cannot imagine a higher honor than to be giving the Wisdom Lecture at Tulane, in this law school that the Judge loved so much. It is especially meaningful to me because this Lecture is the first one given since the Judge's death in May of last year. My clerkship with Judge Wisdom in 1978-79 was the most formative experience in my professional life as a lawyer and later as a law professor. It was also a time of great personal joy. The Judge and Mrs. Wisdom treated me like a member of the family, and I shall always be indebted.
Most of what has been written about Judge Wisdom, both before and after his death, concerned his influence on civil rights in general and race relations in particular. There can be no doubt that he was one of the most influential American jurists of the twentieth century on these subjects, indeed, perhaps the most influential lower court judge, that is, someone other than a Supreme Court Justice. Judge Wisdom did a great deal to promote the end of racial segregation and the emergence of a New South in which African-Americans have much greater educational, economic, and social opportunities. As a legal academic, though, I am at least as interested in the process as in the outcome. I am going to speak about a civil rights case, but my emphasis will be more on the nature of the controversy, some of the people involved, and the competing theories at work, with less emphasis on the legal or social effects of the outcome. In this Lecture, I want to give persons as much primacy as rules of law. As John Noonan wrote some years before his elevation to an appellate judgeship, in abstract legal discussions, “the particular persons who shaped the rule, argued the rule, applied the rule, submitted to the rule, seem to have disappeared.” I join Judge Noonan in thinking of law not only as “a set of technical skills,” but also as “a human activity affecting both those acting and those enduring their action.”
When commentators discuss Judge Wisdom's judicial methodology, they sometimes emphasize his scholarly marshaling of historical and socioeconomic materials and his ingenious methods of breaking new legal ground while giving due deference to legal precedent. He was “the scholar” of the Fifth Circuit, a judge who “elevat[ed] the craft of judicial opinion-writing to an art form,” such that there became such a thing as the “Wisdom Opinion: a characteristically long, detailed exposition of historical development and legal precedent, with particular attention to factual detail adding local color, all set in highly articulate prose.” These comments are accurate and deserving, but they should not divert our attention from the fact that, scholar though he was, Judge Wisdom was a pragmatist at heart. Well over a decade ago, I assessed the Judge's voting rights opinions and wrote an article subtitled The Judicial Artist as Scholar and Pragmatist, a reference that could serve as the subtitle to this Lecture as well. Those who attended the memorial service for Judge Wisdom may remember that Justice Breyer, in a letter, recalled having asked the Judge whether it was more important to be theoretical or practical, and the Judge replied “practical.” As a legal pragmatist, it is no surprise that I remain attracted to this strain of the Judge's opinions.
The topic of this Lecture is a case that arose in Louisiana, United Steelworkers of America v. Weber, in which the Judge was at once theoretical and practical. From the United States Court of Appeals for the Fifth Circuit, the case made its way to the United States Supreme Court, where it became one of the handful of truly important precedents on the sensitive topic of racial affirmative action. Weber has been recognized as raising a prototypically interesting issue of statutory interpretation. All of the major casebooks in the field of legislation treat it as a principal case. Indeed, in the casebook that Bill Eskridge and I created, we wrote that Weber is “the most important statutory case of our generation.” Moreover, in a recent treatise-like monograph, my coauthors and I again use Weber as one of two core examples of the fundamental issues that arise in statutory interpretation. Although all this attention has been paid to the Supreme Court opinions in Weber, I will suggest that Judge Wisdom's dissent from the Fifth Circuit panel opinion provides the most candid and interesting discussion of all.
Before examining Weber in detail, I should note two personal asides. I did not work on the Weber case in the Fifth Circuit or later at the Supreme Court, where following my clerkship with Judge Wisdom I had the honor of clerking for Justice Marshall. I was a year late in both courts. Second, Michael Fontham of the New Orleans law firm of Stone, Pigman, Walther, Wittmann & Hutchinson represented the plaintiff in this case, Brian Weber, throughout all the proceedings. The Stone, Pigman firm originated nearly three-quarters of a century ago as Wisdom & Stone, founded by John Minor Wisdom and Saul Stone. The firm has generously provided the funds to support this Lecture, for which I am thankful.
In this Lecture, I begin by identifying what is the matter with Weber. The Supreme Court opinions in the case lack much persuasive power, and adverse consequences in both law and life have resulted. I then turn to what was really going on in Weber: a look at the people, the plaintiff and the judges alike, that give the case such an interesting quality. I suggest that greater wisdom about Weber requires evaluating Judge Wisdom on Weber as well as a look at what has happened to Brian Weber since the case was decided. Ultimately, I hope to present a biography of a case and the people associated with it.
About the Author
Philip P. Frickey. Irving Younger Professor of Law, University of Minnesota Law School.
Citation
74 Tul. L. Rev. 1169 (2000)