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Wednesday, October 20, 2021

The Most Overrated (Former) Supreme Court Justice

Let's take a break from serious posts and try something fun. Who is the most overrated former Supreme Court Justice? (I'm excluding the current Justices from consideration.) Two names that immediately come to mind are Holmes and Story, but I want to try out a different idea.

It seems to me that Chief Justice Hughes is rather overrated as a Justice. He was a good Governor of New York and Secretary of State. He was an outstanding lawyer. He came within a whisker of being President in 1916. And in my view, Hughes would have done a better job that Woodrow Wilson did in leading the country during World War I and its aftermath.

As a Justice, though, I think Hughes was mediocre at best. He did little of note as an Associate Justice from 1910-1916. As Chief Justice, his main claim to fame is that he successfully steered the Court though the Court-packing crisis of 1937. But you could just as easily say that his poor leadership before 1937 helped cause that crisis. And I've always found Hughes's opinions rather opaque and unhelpful.

In any event, I thought this might jump-start some interesting conversation in the comment thread. 

Posted by Gerard Magliocca on October 20, 2021 at 09:10 PM | Permalink

Comments

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Posted by: slotlive99 | Oct 30, 2021 4:34:30 AM

I meant "assignment" power.

I prefer comment systems with error correction possibilities, including in a limited window, but that is partially a matter of my own weaknesses.

Posted by: Joe | Oct 27, 2021 3:06:26 PM

Justice Blackmun wrote Carnival Cruise Lines.

It is hard for me to think he should be on some shortlist of "most overrated" given how so few really rate him that high. I think he probably is a bit underrated. He's average.

I agree appointment power matters. I think the question is how much it matters regarding ranking "overrated." That's a closer question.

And, Justice Kennedy is another case of someone who gets so much criticism that it is hard to say he's overrated. Even if people would pushback on those who are fans. That is where my Frankfurter reference really fits. Many put him up real high and it might be a bit exaggerated. Others might put him too low. I'm not sure where it settles out, so I was agnostic.

Posted by: Joe | Oct 27, 2021 2:37:00 PM

I would also quarrel with putting Justice Ginsburg on the list. She was one of the best legal minds to serve on the Court in any era. Setting aside history, setting aside her personal story, setting aside politics, someone who is just a phenomenally good lawyer and who manifests that in opinion after opinion does not deserve to be on any overrated list.

On the assignment power, again, one thing a tour of all the floors of the Supreme Court building will impress upon you is how many justices have their portraits on the wall but are historically and legally unimportant figures despite their time on the Court. It's a big deal to be on the Court; it's a much bigger deal to be one of the Justices who is remembered 75 years out. The assignment power plays a big role in distinguishing those justices who mattered from those who did not.

Posted by: Ray Campbell | Oct 27, 2021 10:53:59 AM

I think some of the other commenters vastly underrate the importance of the assignment power. Ambitious lawyers don't strive to get on the Supreme Court so that they can write forgettable opinions in unimportant or technical cases. Ego matters. They want the headline and history making opinions, and it is within the power of the Chief Justice (and the senior member of the other bloc) to assign those. Deftly handled, the assignment power can be somewhere between important and transformative. Justice Brennan was a master at employing it in his years as the senior justice of the liberal side of the Court.

In terms of overrated justices, I've been rereading Carnival Cruise Lines v. Shute, and it's hard to argue that it doesn't justify shortlisting its author. Besides that, what other justice has justified a whole book setting forth alternate, more coherent opinions for his most important case?

Next up would be Justice Kennedy (I've been rereading his opinion in Niecastro recently, too).

I think there is a tendency to overrate justices who write opinions in highly emotional cases that reach a result we like even if the legal analysis itself in that and other cases is not the most cogent.

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Posted by: https://pinoytambayantoday.su/ | Oct 24, 2021 2:43:38 PM

"Frankfurter, mentioned below, is really underrated."

Depends on who you asked.

"Ginsburg is the least interesting and important of the liberal Justices since her appointment."

She seems to be celebrated for being a pioneer and for specific areas of law; late career, she had some dissents that stood out.

Strict Scrutiny Podcast doesn't start with a line of hers during oral argument because they necessary think she was a "great" justice historically as in level of importance.

OTOH, "least interesting and important" is a bit much too. During her years there, I'm unsure if Breyer was more important. As to interesting, yes, some of what stood out for her (like procedure) is boring.

Posted by: Joe | Oct 21, 2021 7:56:32 PM

I'm not sure a lot of Justices are overrated, but aside from Blackmun I think Ginsburg is the least interesting and important of the liberal Justices since her appointment, which doesn't quite seem to be the prevailing view, so I'll say her. Frankfurter, mentioned below, is really underrated, I think.

Posted by: Asher Steinberg | Oct 21, 2021 7:01:10 PM

Since the author of this blog post has written multiple blogs on the ERA ratification process, off topic, I reference today's https://oversight.house.gov/ hearing on the ERA. Prof. Victoria Nourse is one of the witnesses.

Posted by: Joe | Oct 21, 2021 1:10:44 PM

“The Vaccine Mandate is unconstitutional given the fact that not only can one make an informed consent in regards to the vaccine, but if it can be demonstrated that for some persons, the “countermeasure”, can be as deadly as the disease, or for some persons, the “countermeasure” promotes the disease, then under the statute, for some persons, the countermeasure is not, in essence, a countermeasure.”

Should read:

The Vaccine Mandate is unconstitutional given the fact that not only can one not make an informed consent in regards to the vaccine, but if it can be demonstrated that for some persons, the “countermeasure”, can be as deadly as the disease, or for some persons, the “countermeasure” promotes the disease, then under the statute, for some persons, the countermeasure is not, in essence, a countermeasure at all.

The good news is, that by regulating the balance of furin and thus hepcidin, in order to restore the balance of iron, that has the potential in some persons to be deregulated through both Covid 19, and the Vaccine, we can improve health while fighting disease, which should uplift the spirits of us all. 💕🙏

Godspeed!

Posted by: N.D. | Oct 21, 2021 12:13:46 PM

“Roberts' present power, such as it is, lies as him being a sort of swing justice in situations he can bring one of the other Republican appointees toward the law & precedent and away from partisan activism (except in cases of Voting Rights where Roberts' project from his Reagan years is full steam ahead).”

Having correctly defined The Health Care Mandate could be construed to be a tax, although failing to recognize that the addition of the Contraception Mandate by the HHS, after The Health Care Bill was passed and became Law was unconstitutional, due to the fact that it not only added a law to an existing law without following legal procedures for how a Bill becomes Law, but also, violated both The First and Eighth Amendments by violating Religious Liberty and The Principle of Proportionality, through the obscene fine placed on Health Care Insurance that did not include contraception coverage, perhaps Chief Justice Roberts will have a chance to redeem himself by pointing out the fact that The Vaccine Mandate is unconstitutional given the fact that not only can one make an informed consent in regards to the vaccine, but if it can be demonstrated that for some persons, the “countermeasure”, can be as deadly as the disease, or for some persons, the “countermeasure” promotes the disease, then under the statute, for some persons, the countermeasure is not, in essence, a countermeasure.

https://www.govinfo.gov/content/pkg/FR-2020-03-17/pdf/2020-05484.pdf

https://www.ncbi.nlm.nih.gov/gene/5045
https://www.haematologica.org/article/view/5778
https://ashpublications.org/blood/article/111/2/924/103758/Furin-mediated-release-of-soluble-hemojuvelin-a

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1964754/

Posted by: N.D. | Oct 21, 2021 11:59:42 AM

CJs do have the opinion assignment power too, which seems not insignificant. But I otherwise agree the idea of "leading" the Court in the sense of exerting some kind of influence on Justice's votes seems fairly "overrated."

Posted by: kotodama | Oct 21, 2021 11:21:09 AM

Is a Chief Justice really a "Leader" of a Supreme Court? In what ways does (s)he hold sway over the other Justices? A CJ does not have the power a House or Senate leader has in terms of controlling a calendar or granting, denying desired committee assignments. There is no Supreme Court Whip. Roberts' present power, such as it is, lies as him being a sort of swing justice in situations he can bring one of the other Republican appointees toward the law & precedent and away from partisan activism (except in cases of Voting Rights where Roberts' project from his Reagan years is full steam ahead).

Posted by: C | Oct 21, 2021 11:00:53 AM

Somewhat related, but of course not the same question: Frank Easterbrook and David Currie wrote articles nominating "the most insignificant supreme court justice."

Here are links to the PDFs:

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5461&context=journal_articles

·
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5461&context=journal_articles

Posted by: Eugene Pekar | Oct 21, 2021 10:29:02 AM

Great issue.

Not very important, yet, it is great not because of the fun. There is no fun here. But, very complicated issue.

What I would suggest, is that in global terms (at least Western world) I have no doubt:

Recently or in more modern terms, Justice Ginsburg. And historically, Marshall.

Thanks

Posted by: El roam | Oct 21, 2021 7:53:00 AM

I'm not sure how much power he had to avoid the crisis. What would he do? Convince Roberts to vote differently? I also wonder how highly people really rank him. From what I can tell, he is seen as a pretty good Chief Justice, but not really a "great" one.

As to hard to read opinions, I figure a major problem is he was often aiming for a result, and the reasoning came second.

But, I don't know how his writing is in more run of the mill opinions. I'm familiar with the usual well known ones. People don't think him a great writer in that way anyway, right?

===

John Marshall is getting some pushback in recent years. One professor wrote about his support of slavery. Also, some note how his legal reasoning in various cases is suspect. But, he has such a great cause for greatness that it probably isn't enough to knock him down too much.

I think there is a small sample of possibilities and that some either are fairly ranked (like Harlan and Brandeis) or are have mixed rankings from some (like Warren or Brennan) anyway. My vote might go to Frankfurter.

Posted by: Joe | Oct 20, 2021 10:52:53 PM

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