Two recent graduates of the MAHG program focused their analyses on subjects they might have seen as beyond the horizon for such study. Kimberly Huffman wrote an analysis of the jurisprudence of Chief Justice John Roberts, a sitting justice who had served on the high court less than five years at the time she began work. Sara Whitis wrote an interpretation of two works by a living scholar of American government. Unusual as these thesis choices are, they did not spring from a desire to cover new ground so much as from a logical pursuit of the questions that most interested them. Both Kimberly and Sara also thought their projects would make them more knowledgeable and articulate as secondary school teachers.
Following a Living Jurist
Among her students at the Wayne County Schools Career Center, a career and technical school for high school juniors and seniors, Kimberly is known as "crazy about the Constitution" and particularly interested in the court system. Kimberly teaches American government, economics, and two sections of dual enrollment political science. Her students, studying from college texts, earn college credits at Stark State College while completing their high school degrees and learning a specific technical or career skill. Each year Kimberly asks her government students to write a biography of a sitting Supreme Court justice. In 2005, when Chief Justice Roberts was nominated and confirmed, Kimberly prepared her own biography of him as preparation for the reports students would submit. As she read about the new Chief Justice, "I really came to admire him," Kimberly said. Approaching thesis work, Kimberly knew she wanted to work on a project related to the Constitution that would be of benefit to her students. Owning up to her fascination with the new Chief Justice, she asked Professor Jeff Sikkenga whether a capstone or thesis project on Roberts would be feasible. "He said it would be a legitimate topic."
When studying a living jurist, "it takes time to sort out what the important sources are," Sikkenga observed. Other scholars have not yet identified the most important primary documents. Kimberly's research required "energy and devotion to the topic." She read through the 1300 pages of Roberts' confirmation hearings as well as the twentysome cases on which he had, to date, authored the majority opinion. She soon realized she could not cover all aspects of Roberts' jurisprudence. Noting that the largest portion of Roberts' written opinions concerned freedom of speech, she decided to focus on Roberts' judgments in this area. Her thesis found that Roberts' opinions display "a prudent regard for the proper and limited role of the judiciary, a priority assigned to certain categories of speech, and a compelling adherence to precedent."
Roberts gives priority to speech on matters of public interest, Kimberly found, and, referring to precedent, he defines such speech as political speech "fairly relating to any matter of political, social, or other concern to the community," (Connick v. Myers, 1983) or that "is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public" (San Diego v. Roe, 2004; Cox Broadcasting Corp. v. Cohn, 1975; Time, Inc. v. Hill, 1967). "The First Amendment, Robert states, reflects 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,'" Kimberly writes.
Sikkenga said that Kimberly's conclusions point to the aspect of Roberts' rulings that has most surprised observers. "Commentators have been surprised at how aggressively the Roberts court has defended fairly expansive notions of free speech. Roberts is known as a conservative, and most academic commentators expected Roberts to make narrow rulings that closely adhered to precedents. In academic circles, a high regard for free speech is usually considered to be a value of the left." Such recent opinions as Citizens United v. the Federal Election Commission (which Roberts concurred in but did not write) and Federal Election Commission v. Wisconsin Right to Life (an opinion Roberts authored) showed the Court expanding free speech during election campaigns, overruling provisions of the 2002 Bipartisan Campaign Reform Act.
Kimberly's thesis also took note of Roberts' leadership style. "Roberts announced during his confirmation hearings that he would work for more consensus and a greater number of unanimous decisions on the Court," Kimberly said, arguing that more consensus would promote greater public confidence in the Court's decisions. "He also argued for a limited role for the judiciary," she said. His record shows that he is meeting both aims. Under his leadership, the Court has delivered unanimous opinions on 43% of its cases, compared to only 31% of the cases reviewed by the Rehnquist Court. Also, the Court has declined to review cases of lesser importance that the Rehnquist Court might have taken on, the average caseload per year decreasing to 74 from about 100 under Rehnquist.
Roberts has been effective as a leader of the Court, Kimberly thinks, because of his collegial, respectful, and plain-spoken style. She was impressed by his clarity and humility when, as a Madison Fellow in 2009, she heard him speak. The Chief Justice entertained the Fellows' questions, and Kimberly asked about Roberts' expressed concern over the stagnant salaries of federal judges, relating this problem to Madison's argument in Federalist 78. Roberts politely declined to comment. "He said, 'It would be inappropriate for me to talk about salaries in front of a group of teachers, who work so hard and don't get paid enough,'" Kimberly recalled.
Kimberly admits to being an avid follower of Chief Justice Roberts, one who can entertain her students with anecdotes about his earlier career as a Supreme Court litigator. She recounts that he followed certain rituals when going before the Court to argue a case: "He would pass by the statue of John Marshall and touch his feet. He would wear earphones so that, as he mounted the staircase to the courtroom, he would hear a favorite Souza march."
Kimberly can understand the impulse to reinforce one's self-confidence through such rituals. She wants an interviewer to know that she grew up as one of five children of a single, deaf mother who relied on welfare to support her children. She marvels that she achieved not only her BA degree but also her Masters, and admits that at many points "I was ready to throw in the towel, but my interest in this subject kept me going." She uses her thesis as a teaching resource that she continues to tweak. She read retired Justice John Paul Stevens' memoir, Five Chiefs, when it appeared this fall, hoping he would analyze Robert's jurisprudence.
Interpreting a Living Scholar
As Sara Whitis approached her thesis work, she knew she wanted to write about what Abraham Lincoln considered the central idea of the American regime: the idea of human equality. She knew it had been asserted in a bold way by the Founders and that they had had a hard time living up to it; she knew that Lincoln's statesmanship revolved around it, and that contemporary scholars still disagreed about its meaning and its role in our history. From this rather broad beginning she found her way into her thesis topic, a comparison of two important books on the statesmanship of Abraham Lincoln by a scholar of American politics, Harry V. Jaffa.
Sara had been contemplating a survey of views of equalitycovering Jefferson, Lincoln, Stephen Douglas, Roger Taney, and Alexander Stephens as well as key modern historians. She knew she would have to consider Jaffa's landmark 1958 study, Crisis of the House Divided, as well as its sequel published 40 years later, A New Birth of Freedom. Her advisor, Christoper Flannery, had told her Jaffa offered the deepest and most thorough study of the American Founders' idea of equality, and of Lincoln's statesmanship, which was anchored in that idea.
In fact, as she discovered studying Jaffa's works, in the 40 years that elapsed between Crisis and New Birth, Jaffa had come to disagree with himself. As Flannery joked about his never humble professor: "Jaffa himself would consider this the most important disagreement imaginable!"
Eventually, Sara realized that examining this disagreement could become a thesis in itself. The disagreement concerned Lincoln's interpretation of Jefferson, the man to whom he accorded "all honor" for having
in the concrete pressure of a struggle for national independence by a single people the coolness, forecast, and capacity to introduce into a merely revolutionary document an abstract truth, and so to embalm it there, that today, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of reappearing tyranny and oppression. (Lincoln, letter to Henry L. Pierce, 1859)
Did Lincoln read into the statement that "all men are created equal" something more than Jefferson really meant? Given the Founders' failure to deal with the problem of slavery, did Lincoln creatively misread their commitment to this principle? As Sara writes in her thesis, the Jaffa of Crisis argues that "Lincoln had to 'exaggerate' the Founders' meaning and 'transform' their understanding of equality, in order to ennoble the American Founding and make it worthy of respect and reverence." The Jaffa of A New Birth of Freedom holds a more generous view of the Founders, tempered both by a broader reading in Jefferson and a new reading of Locke, the British philosopher often viewed as influencing the Founders' ideas about government.
"I've a simple mind. I really liked trying to understand the idea of equality, and decided to keep focusing on this until it became clear," Sara said. The process "has helped me learn to better read primary documents, which is something we do in our history classes at school: we study the Declaration and the Constitution, for example. In our government class we are thinking about Locke." Sara teaches at Ashland High School, "just down the street from the university." She works as an intervention specialist in the general education curriculum, often helping students with learning disabilities and co-teaching in economics, government, and US history classes.
Much like Kimberly Huffman, Sara gained inspiration for her teaching work from her thesis work. Studying the statement about human equality in the Declaration, Sara "learned how beautiful" it is. "The Founders didn't have to declare that idea when they declared independence. Yet our whole plan for limited government and democratic freedoms derives from this idea. Working on this project helped renew my spirit and my gratitude for what the Founders accomplished, and it reminded me of the responsibility we have to live up to this idea of equality."
While Huffman awaits the judgments of biographers and scholars to confirm her assessment of Chief Justice Roberts, Whitis enjoyed a more immediate affirmation of her conclusions. Professor Flannery shared her thesis with Jaffa, and the eminent scholar was so impressed by it that he obtained Whitis' phone number from the Ashbrook Center and paid her a complimentary call. He told her what he had already told Flannerythat "he doesn't know of any better explanation of the development in his own thought than what you find in Sara Whitis' master's thesis." Sara found the call "very humbling. I tried to tell him how much I had learned from Professor Flannery and other MAHG instructors who had studied with" Professor Jaffa at Claremont Graduate University "and he responded good-humoredly that 'Well, I guess I taught them [Flannery, Schramm and others] pretty well, then!'"
In like manner, these recent graduates of the MAHG program have discovered the rewards not only of studying the writings of statesmen of the past, but also of engaging the work of thosea major scholar and our pre-eminent juristwho are still living and working.