SCHWARTZ, BERNARD (1923–1997)

Bernard Schwartz, described by New York Times commentator Anthony Lewis as "the most committed, productive legal scholar of our times," was born in New York City. After being graduated Phi Beta Kappa from New York's City College, he received his law degree from New York University (NYU) with the highest grades in the school's history and later received doctorates in laws and letters from Cambridge University and the University of Paris.

Schwartz started his fifty-year law-teaching career at NYU and then assumed the Chapman Chair at the University of Tulsa in 1992. He wrote more than sixty-five books and hundreds of articles, but was most recognized for his scholarship on administrative and constitutional law; he co-authored casebooks and textbooks, and wrote annual summaries of decisions on these topics.

Schwartz saw his major role as a reporter, explaining and critiquing the Supreme Court, not just for colleagues but also for the general educated public. Unlike the authors of The Brethren (1979) and Closed Chambers (1998), he did not get into personality conflicts and clerk recollections, but instead focused on the process of decision-making in books such as The Unpublished Opinions of the Warren Court (1985), The Unpublished Opinions of the Burger Court (1985), A History of the Supreme Court (1993), and the popular American Bar Association award-winning book, Decision: How the Supreme Court Decides Cases (1996). He also explored individual cases and selected issues in numerous opinion articles for dozens of newspapers and organized conferences of scholars, practitioners, journalists, and political leaders on the jurisprudence of the warren court, the burger court, and the rehnquist court. Finally, he tried to involve the public in enjoying the criticism process by listing the best and worst Justices, best and worst decisions, and even the best and worst law-related movies in his A Book of Legal Lists: The Best and Worst in American Law with 100 Court and Judge Trivia Questions (1997).

Through intensive research of unpublished drafts, personal notes, internal memoranda, and other historical records, he sought "to tell what happened and not to shield the Court's inner processes from public view." Because of his candor backed up by scholarship, and obvious affection for the Court and all its members past and present, he received the continuing respect and recognition of even those he criticized. He was honored just prior to his death by being asked to present a talk, "Earl Warren: Super-Chief in Action," in the Chambers of the Supreme Court.

At the time of his death, Schwartz had indicated his annoyance with recent trends in the Court, such as hidden judicial activism, where the Rehnquist Court majority was, in his opinion, dramatically changing constitutional principles "without acknowledging that they had done so." He also was concerned about the dramatic decrease in the number of cases the Court heard and about the possibility that the new highly political confirmation process might lead to mediocrity. An oliver wendell holmes, jr. , a louis d. brandeis, or even a william j. brennan, jr. , he thought, could not get through the White House review process or the U.S. senate confirmation process. He hoped to document these and other trends in a follow-up to his Main Currents in American Legal Thought (1993), which he had almost completed and had tentatively titled "A History of American Law and Legal Thought in the 20th Century."

Martin H. Belsky
(2000)