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Thursday, June 11, 2009
Grouchy Justice(s): NRF's defense of judicial bad behavior...
For those of you who missed it, Noah Feldman's got an unusually interesting take in this morning's NYT on the Sotomayor nomination and why judicial temperament is not a pre-req for being a great Justice. He examines why the "no asshole workplace" is not necessarily a desideratum if we're looking for great constitutional developments, whatever those are. Specifically, we get a flavor of how the friction among Frankfurter, Black, Douglas and Jackson "worked."
Posted by Administrators on June 11, 2009 at 11:13 AM in Constitutional thoughts | Permalink
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Comments
What utter rubish. Can I write such nonsense and get tenure at Harvard? What's his next thesis: "Professional athletes: So many huge assholes, yet so many hugely successful and influential"
Posted by: Alex | Jun 12, 2009 1:42:28 AM
Feldman's article seems to say only that a bad character is not incompatible with greatness. This is no great shocker. The list of our leaders throughout the generations with personal problems is so long that it sometimes seems that the leader without such a problem is the exception that proves the rule (or, said leader is hiding his problem - just wait for the unauthorized biography).
The question of whether grouchiness on the Court leads to better decisions is going to be best answered by looking at the Court's papers, not at the public or private persona of the Justices. One can certainly see a reasonable mechanism where animosity between the Justices could lead to better decisions. Sharply worded dissents could lead to better arguments in the main opinion. By contrast, unanimous decisions could be the result of groupthink, convincing mainly the group of Justices, but failing to be very convincing or helpful to the lower courts having to apply it. But, just as reasonable, is the possibility that the attempt to reach consensus, to convince the grouchy judge, creates decisions that compromise, on the force of the arguments, on the appropriate placement of jurisprudence, etc. Some of the decisions Feldman points to suggest the latter mechanism. Brown has been criticized as "bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices." ("What Brown v. Board of Education Should Have Said," Jack Balkin ed.)
I would love to see a more comprehensive study of whether conflict leads to better or worse decisions.
Posted by: Greg | Jun 11, 2009 2:27:44 PM
Actually, I am afraid that I found the Feldman article remarkably unpersuasive. It demonstrates that there have been many unpleasant personalities on the Court -- no surprise there -- but offers no evidence that this state of affairs is desirable. For example, Feldman makes much of the tensions on the Vinson Court, without acknowledging that these tensions left the Court virtually paralyzed when Brown v. Board of Education arrived. It took the personally deft Earl Warren to bring the Court together on Brown. What exactly Feldman has established as a normative matter, I do not know.
Larry Rosenthal
Chapman University School of Law
Posted by: Larry Rosenthal | Jun 11, 2009 1:27:58 PM
I (perhaps incorrectly) recall a story about Frankfurter and Vinson that showed the depth of their dislike for one another. At the post-argument conference for a case, Vinson expressed his view of the case. When it was Frankfurter's turn, he spent 45 minutes explaining why Vinson was wrong, in the same manner as a flippant professor would destroy the argument of a not-so-bright student. Vinson grew visibly furious as this went on, and when Frankfurter finished speaking, Vinson leapt up from his seat and took a swing at Frankfurter; he missed and was restrained by Reed. Frankfurter left the room under Jackson's escort, and the conference continued.
Posted by: Chuck | Jun 11, 2009 1:25:21 PM
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