The indispensible and, as far as I can discern, scrupulously non-partisan and objective Supreme Court analysis site SCOTUSBLOG, has, in a rare display of frivolousness, created a “bracket” quest for its readers to decide on the “the greatest Supreme Court justice” of all time.
The contest is now down to the “Final Four,” as a parody of the NCAA tournament that I somehow manage to miss every years because of my sock drawer emergencies. Writes James Rosomer:
This tenacious tetrad of justices (just enough to grant cert!) is an apt representation of 220 years of American jurisprudence. In their ideologies, their sensibilities and their historical eras, these four semifinalists are diverse in many ways – though the lack of racial and gender diversity also stands out as a sad reflection of the court’s history.
What matters is the intellectual diversity on the Court, not color or genes, but even SCOTUSBLOG apparently feels the need to pander to the woke mob. I’ll forgive Rosomer, and the readers who voted in the competition have mostly shown an admirable lack of ideological bias and substantial historical perspective. “A liberal icon, a conservative icon, an early 19th-century pioneer, an early 20th-century luminary” is how the blog correctly describes the finalists.
My favorite Supreme Court Justice was among the 16 entered, but didn’t make it to the finals. No, not John Marshall: my favorite is Hugo Black. That the best writer and the keenest legal mind of all (in my opinion) would lose to Earl Warren demonstrates the unavoidable vagaries of the term “greatest.” Is that intended to mean most important? Marshall has to win in that category. Most influential? Warren, perhaps, but that was as an administrator and leader, not as a judge.
Black was a First Amendment absolutist, and we could use his eloquence now. The black mark against Black is that he wrote the court’s majority opinion in Korematsu v. United States, which upheld Roosevelt’s decision to intern Japanese Americans during World War II. Black believed the judiciary should stay in its lane, and thus believed that the Court should not interfere with legislative and executive actions during wartime. It is fair to say that everyone was wrong in the decision to take away the rights of Japanese Americans. Calling Black a racist, however is unsupportable. He joined the majority in Shelley v. Kraemer (1948), which invalidated the judicial enforcement of racially restrictive covenants.He joined the unanimous Brown v. Board of Education (1954)decision that struck down segregation in public schools.
Black, however, staunchly opposed bending the law and law enforcement to accommodate civil rights activism. He opposed the Warren Court’s penchant for reversing convictions of sit-in protesters, saying In 1968,, “Unfortunately there are some who think that Negroes should have special privileges under the law.” Unfortunately, there are more who think that now.
Black argued that waiving legal consequences for laws broken for “good causes” could eventually lead to support for evil causes later. Black said he was “vigorously opposed to efforts to extend the First Amendment’s freedom of speech” to conduct. Ah, well, I’m a Red Sox fan; I’m used to losing.
Of the remaining four, I would think Marshall is the easy choice.
On the other side of the matter we, have the sneering bias of Joe Patrice, founder and resident ideologue of his legal gossip sheet, Above the Law, whose general perspective is illustrated by his opposition to John Marshall because he was a slaveholder. This marks Patrice as belonging to the statue-toppling mentality, a state that in incapable of the kind of critical thought Supreme Court justices–well, maybe not Justice Sotomayor and a few others–routinely display. We judge judges by what they do as judges, just as we judge Presidents by what they do while President, and comedians by how good they were are making people laugh. Marshall—or Black, who makes the a “worst justice” list presumably because he joined the KKK as a young Southern politician—would be the same SCOTUS justices, with the same accomplishment in that sphere, if they were serial killers. (I would dock them some points for that, I suppose.)
Patrice steers readers to left-wing Five Four Pod’s The Worst Supreme Court Justice Of All Time competition, whose creator, law firm associate-turned GQ hack Jay Willis writes:
The overwhelming majority of this country’s 115 justices, however, have been absolutely awful people—a lily-white constellation of unapologetic racists, sexists, homophobes, xenophobes, anti-Semites, or some combination thereof. The history of the Supreme Court is a history of its justices cheerfully infusing their work with the prevailing forms of bigotry of their eras, propping up institutions ranging from slavery to Jim Crow to forced sterilization to internment camps, penning dense opinions that launder all kinds of abhorrent policy choices using incomprehensible, bone-dry legalese.
Now I’m inspired to consider a creating an Arrogant Hind-Sight Bias Social Critic bracket…