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Wednesday, October 30, 2024
"The great ones..."
Reporters naturally use the best quotes from their interviewees and give them good placement. So one may be tempted to overread Georgetown Law professor Brad Snyder's quote in this story about Supreme Court justices and retirement, which makes the third graf:
“The great ones get their backs up,” observed Georgetown Law professor Brad Snyder, author of a Felix Frankfurter biography and a scholar of the 20th century court, referring to retirement pressure. “They say ‘No one can do this job as well as I can.’”
Since the second part of the quote is as apt to describe hubris as greatness, and is untrue besides, it seems clear Snyder does not mean "great" in the sense of qualitative greatness. A later quote from Snyder in the story appears to confirm that: "'They are trying to keep power, and they are trying to stay relevant.'"
It is still worth lingering on the word "great" for a second even if Snyder is cleared of any charges here. "Great" seems accurate in some ways: Many of the most famous and influential justices have indeed served long terms and declined to leave early or even on time. John Marshall was the fourth-longest-serving justice and longest-serving Chief; Holmes, Thomas, and Ginsburg have all been celebrated, admittedly at various times and in varied circles, and all stayed past the point at which honor and fitness suggested they should step down. (Thomas is still serving.)
This is not a coincidence. I refer readers to the June 1995 issue of the NYU Law Review, which contains an excellent symposium on judicial biography. Of particular note is a pair of articles--by G. Edward White and Sarah Barringer Gordon--about the historiography of judicial reputation and the canonization of judges as "great." As befits a great symposium, the writers are not all in agreement on all points. But they are widely agreed that justices like Holmes and Brandeis were not held up as "great" because there could be no doubt on the question; whether they would be held up as great, how that greatness would be described, and so on were all contingent questions.
I would add (as various commentators in the symposium do) that you need folks around to do the holding-up: a claque of former clerks, influential friends or followers, writers pursuing some ideological project, and others who become "invested," to quote White, in building and burnishing those justices' reputations (and, often, their own, or at least the reputation of the project they wish to advance) and defending them against critics. Longevity doesn't guarantee that you'll accumulate such a cadre of supporters, or that they will have the eloquence or status to push forward your canonization successfully. But it sure don't hurt any. The shorter your term of service, the fewer followers you'll have and the fewer opinions for people (preferably people with the right bylines) tp become attached to and lionize for political and ideological reasons as well as reputational ones. As former Justice David Souter observes in the story, "For most of us, the very best work that we do sinks into the stream very quickly."
Obviously, beyond the question of PR-and-politics, what constitutes judicial "greatness" is contestable, since it's a word--like "courage"--that's protean, a bucket that can be filled with many things and often has been filled in advance with a crude checklist of substantive results, rendering the epithet almost useless. So I'll just cast my own vote and note that the greatest justice discussed in the piece is in fact Souter, precisely because he provided a reasonable term of service and then left quietly--and, one might add, has further blessed us with a null set of post-tenure books, neither a weak-soup memoir nor a pamphlet scolding his or her replacements. ("Dies at __; Published No Books" will one day be a wonderful tribute of a headline to an obituary for a Supreme Court Justice.) It's in the graceful willingness to sink into the stream that the greatness lies. May we honor and forget such judges more often.
Posted by Paul Horwitz on October 30, 2024 at 04:28 PM in Paul Horwitz | Permalink
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