"A legal mind is a mind that can think of one of two inseparably connected things without thinking of the other."
-definition by Thomas Reed Powell, who taught William O. Douglas constitutional law at Columbia (and who gave him a 'C') and taught at Harvard for twenty-five years. This from Lucas A. Powe, Jr's "The Warren Court," Belknap/Harvard, 2000. I believe I heard that from property professor Ralph Norvell (Black Ralph and his Mystery Hour) at NYULS forty years ago and forgot about it until now.
Powe calls this definition of the legal mind "perfect, and therefore has never been bettered." p. 500
Powe's example of the definition in operation is this:
"Law professors have first-rate legal minds. When they think of the Warren Court, they see what Part III calls "history's Warren Court" without seeing history. They see the Court ordering an end to racial discrimination, creating political equality as well as an end to McCarthyism, requiring religion to quit the public schools and appear in public only to march for justice, moving the death penalty toward its deserved grave, demanding an administration of criminal justice that conforms to the strictures of Griffin-Gideon-Douglas, providing the most needy among us with treatment characterized by equal concern and respect. They see a Court that was better than any Court had ever been. To paraphrase Robert Kennedy, "some ask 'why?'; they ask 'why not?'" -- meaning why not again, right now."
Powe goes on to emphasize that the Court does not operate in a vacuum and all good things bestowed on American society in the 1960s did not come from judicial decisions alone. Further that nostalgia for the Warren court is necessarily a nostalgia for the 1960s.
Powe then lists a number of significant events, from MLK, Jr.'s "I Have a Dream" speech to the moonwalk to the Kennedy funerals, the student sit-ins at Woolworth's, the Democratic Convention in Chicago, Bob Dylan, Catch-22, Viola Liuzzo, George Wallace, Soviet Missiles in Cuba, combat units sent to Vietnam, the 1967 Summer of Love in San Francisco, the Great Society, to the unleashing of an idealism and hubris that witnessed old virtues and verities that Earl Warren represented, like integrity, patriotism, and family, begin their slide out of style. Powe then states: " -- well, those impulses created history's Warren's Court, too. Only a legal mind could separate them." p. 501
It's rankled me for some time that I've not understood how Thomas Jefferson could have written the simple yet exalted statement, "We hold these truths to be self-evident that all men are created equal," and yet in the conduct of his life appear to ignore his self-stated ideal by disregarding the fact that he owned and had close relations with slaves. What kind of hypocrisy is this, I've wondered. Hamilton termed Jefferson a hypocrite after their falling out in Washington's administration.
The answer to the question of why Jefferson failed to practice what he preached may lie in Thomas Reed Powell's definition of the legal mind. When Jefferson wrote those inspiring words, perhaps he was exercising his legal mind in accordance with Powell's definition. Perhaps Jefferson was thinking as a constitutional lawyer or law professor (on one of our better days). He would have been quite aware in one part of his mind how the world, in fact, was, and yet have separated that unpleasantness from the ideal which he was stating.
Maybe this goes to the heart of the lawyer's function. One lawyer says such-and-such is the case, while his adversary says not so, you've failed to take into account thus-and-such. The Separator in our mind has prevented us from realizing something we should have realized.
Robert Sheridan
