Supreme Court - your favorite (or best) and least favorite (or worst) Justices

[Trotsky]

There was recently some psuedo-slam piece done on Justice Neil Goruch, referencing conservative jurist icon Richard Posner's takedown on the sorry state of the Supreme Court jurisprudence, and what a shitty jurist he is. It got me thinking, with the numerous lawyers and law school grads here (@Quipling, @alanb) what everyone thought about the history of the Supreme Court's many great justices.

For my favorites, I go:

1. Justice Louis Brandeis (1916-1939) - the ultimate utilitarian, his early dissents in the areas of 1st Amendment protections is to this day some of the most brilliant jurisprudence in Supreme Court history.

2. Justice Thurgood Marshall (1967-1991) - Alongside Justices Brennan and Douglas, one of the greatest defenders of civil liberties to ever sit on the Court. But unlike Douglas, he was less an ideologue and authored opinions that would later form the basis for disparate effect legislation.

3. Justice Felix Frankfurter (1939-1962) - A true bastion of integrity and commitment to his craft, Frankfurter was a bit of an enigma, as his early career branded him somewhat of a radical, as he helped found the ACLU and advocated famously on behalf of international leftists. Yet, late in his career, he became de facto leader of the Court's conservative faction during its most liberal era. Also was the condescending atheist neckbeard of his era.

4. Justice Antonin Scalia (1986-2016) - Shamelessly egotistical, oftentimes inconsistent, and unfortunately biased by his own normative beliefs in some areas of moral division, Scalia was nonetheless one of the most poetic and accessible jurists in the Court's history. Despite holding himself out as an "originalist" Scalia certainly never was one, and the moniker was always beneath him. And, while some others on the list were heavy hitters in landmark precedents, Scalia may most be remembered for writing majority opinions on fairly dry procedural topics, such as immigration law, that were illuminating and captivating to the reader.

5.. Justice David Souter (1990-2009) - Like his colleague Justice John Paul Stevens, Souter was appointed by a conservative president. But, in a golden era of presidents appointing nominees based primarily on expertise rather than politicization, Souter became a reliably center-left jurist, and authored some of the most innovative and unusual opinions.

Honorable mentions: Justice Hugo Black (1937-1971), Justice Sonia Sotomayor (2009-current), Justice Earl Warren (1953-1969)


Worst Supreme Court Justices, in no particular order:

James Clark McReynolds (1914-1941) - hopelessly bigoted and partisan, openly disparaged minorities, disrespected his Jewish contemporaries, and based his opinions on his prejudices.
Clarence Thomas (1991-present) - scarily incompetent and unable to explain even the simplest of legal reasoning. Oh, and he openly supports Lochner, one of the most infamous holdings/eras in US history.
Willis Van Devanter (1911-1937) - Who? Oh, yeah, it's the guy who served for a quarter century yet almost never wrote any opinions due to "writer's block." But, it's okay, he left his mark on the judiciary by nearly staving off the New Deal era.
Neil Gorsuch (2017-present) - Scalia's wordiness and pretentiousness without Scalia's wit or writing ability. Clarence Thomas's lack of judicial talent, without Thomas's brevity.

 

[Trotsky]

I realize this will draw participation from partisans.

So, in hopes that your partisan shit flinging is at least consistent, here is a (very crude) depiction of the Court's ideology over the past century.

 

[Trotsky]

I'm trying to remember the other members of the WR Bar. @Gregolian? @BKMMAFAN?

 

[PolishHeadlock]

@Trotsky

So you agree with the position that Scalia was the biggest defender of the 4th amendment since he's been on the bench?

 

[Trotsky]

@Trotsky

So you agree with the position that Scalia was the biggest defender of the 4th amendment since he's been on the bench?

No, almost definitely not, but he was better than his conservative peers or his conservative predecessors.

But he thankfully was an important swing vote when he joined the liberal faction in Gant v. Arizona, in which the Court absolutely made the right ruling in favor of robust 4th Amendment rights against arbitrary police discretion.

 

[PolishHeadlock]

No, almost definitely not, but he was better than his conservative peers or his conservative predecessors.

But he thankfully was an important swing vote when he joined the liberal faction in Gant v. Arizona, in which the Court absolutely made the right ruling in favor of robust 4th Amendment rights against arbitrary police discretion.

Do you think he was more "consistent" in his approach compared to other conservative justices?

 

[woodguyatl]

I'm trying to remember the other members of the WR Bar. @Gregolian? @BKMMAFAN?

I think Pan and AlanB.

 

[Trotsky]

Do you think he was more "consistent" in his approach compared to other conservative justices?

Haha, no to this either. Scalia was famously inconsistent (see: his defense of the firing of a police officer for remarking about how Reagan sucked in her private free time). I have colleagues who prefer Clarence Thomas for his more consistent(ly daft) approach. Scalia, despite touting his supposed originalism, was at his core a conservative-leaning balancing-test jurist imo.

EDIT: @PolishHeadlock, I should clarify, though. Conservative jurisprudence throughout American history has been largely, and very consistently, a reactionary set of shifting doctrines dressed up as originalism, textualism, etc. That much became obvious in the early freedom of speech era. Scalia's decisionmaking, while dressed up in originalist garbs, was rhetorically pretty open about its reactionary/normative elements. More than anything, though, his prose will be what is most remembered and missed about his tenure.

 

[woodguyatl]

There was recently some psuedo-slam piece done on Justice Neil Goruch, referencing conservative jurist icon Richard Posner's takedown on the sorry state of the Supreme Court jurisprudence, and what a shitty jurist he is. It got me thinking, with the numerous lawyers and law school grads here (@Quipling, @alanb) what everyone thought about the history of the Supreme Court's many great justices.

For my favorites, I go:

1. Justice Louis Brandeis (1916-1939) - the ultimate utilitarian, his early dissents in the areas of 1st Amendment protections is to this day some of the most brilliant jurisprudence in Supreme Court history.

2. Justice Thurgood Marshall (1967-1991) - Alongside Justices Brennan and Douglas, one of the greatest defenders of civil liberties to ever sit on the Court. But unlike Douglas, he was less an ideologue and authored opinions that would later form the basis for disparate effect legislation.

3. Justice Felix Frankfurter (1939-1962) - A true bastion of integrity and commitment to his craft, Frankfurter was a bit of an enigma, as his early career branded him somewhat of a radical, as he helped found the ACLU and advocated famously on behalf of international leftists. Yet, late in his career, he became de facto leader of the Court's conservative faction during its most liberal era. Also was the condescending atheist neckbeard of his era.

4. Justice Antonin Scalia (1986-2016) - Shamelessly egotistical, oftentimes inconsistent, and unfortunately biased by his own normative beliefs in some areas of moral division, Scalia was nonetheless one of the most poetic and accessible jurists in the Court's history. Despite holding himself out as an "originalist" Scalia certainly never was one, and the moniker was always beneath him. And, while some others on the list were heavy hitters in landmark precedents, Scalia may most be remembered for writing majority opinions on fairly dry procedural topics, such as immigration law, that were illuminating and captivating to the reader.

5.. Justice David Souter (1990-2009) - Like his colleague Justice John Paul Stevens, Souter was appointed by a conservative president. But, in a golden era of presidents appointing nominees based primarily on expertise rather than politicization, Souter became a reliably center-left jurist, and authored some of the most innovative and unusual opinions.

Honorable mentions: Justice Hugo Black (1937-1971), Justice Sonia Sotomayor (2009-current), Justice Earl Warren (1953-1969)


Worst Supreme Court Justices, in no particular order:

James Clark McReynolds (1914-1941) - hopelessly bigoted and partisan, openly disparaged minorities, disrespected his Jewish contemporaries, and based his opinions on his prejudices.
Clarence Thomas (1991-present) - scarily incompetent and unable to explain even the simplest of legal reasoning. Oh, and he openly supports Lochner, one of the most infamous holdings/eras in US history.
Willis Van Devanter (1911-1937) - Who? Oh, yeah, it's the guy who served for a quarter century yet almost never wrote any opinions due to "writer's block." But, it's okay, he left his mark on the judiciary by nearly staving off the New Deal era.
Neil Gorsuch (2017-present) - Scalia's wordiness and pretentiousness without Scalia's wit or writing ability. Clarence Thomas's lack of judicial talent, without Thomas's brevity.

Historically worst is Taney if for no other reason than he authored the Dred Scott decision. Currently, Thomas, and it isn't even close.

 

[PolishHeadlock]

Haha, no to this either. Scalia was famously inconsistent (see: his defense of the firing of a police officer for remarking about how Reagan sucked in her private free time). I have colleagues who prefer Clarence Thomas for his more consistent(ly daft) approach. Scalia, despite touting his supposed originalism, was at his core a conservative-leaning balancing-test jurist imo.

Interesting.

Can you expand on why you have him in your top 5?

He seems to be universally respected across the board.

I'd love to hear the opinions of @Quipling @panamaican @Zankou and any other lawyer

 

[Trotsky]

Interesting.

Can you expand on why you have him in your top 5?

I edited my initial (second) response to you to elaborate more on that. I think his portfolio is more flexible, more accessible, and more enduring than most conservative jurisprudence. All you have to do is compare it against those of Justice Thomas to see the difference: Scalia, however condescendingly and combatively, tried to explain his position and hedge it against criticism. Meanwhile, Thomas would just render unadorned, boilerplate, and frustratingly reductive holdings.

He seems to be universally respected across the board.

Oh, heavens no. I think his enthusiasm and writing ability are respected, but Scalia himself is and will continue to be pretty divisive as a throwback to partisan jurists of yore. I personally like him for reasons that probably relate some to my having grown up in the Roberts era, and that relate to how bad conservative jurisprudence has been for so long and how much worse it is actively getting with Thomas/Alito/Gorsuch. But I also acknowledge that he too often allowed his emotions and personal beliefs to contaminate his duties (for instance, he was famously ill-tempered on the court) and this made for some striking inconsistency as well.

I would always joke that the standard Roberts era judicial decisions was:
Majority opinion - 5 pages
Scalia - "you idiots! It's so simple! Let me explain how simple it is!" - 15 pages

 

[Gregolian]

I'm trying to remember the other members of the WR Bar. @Gregolian? @BKMMAFAN?

I sadly don’t have a BAR license

 

[Limbo Pete]

Favorite:
Thurgood Marshall

Worst:
Roger Taney.

 

[Fluffernutter]

George Washington had no kids.

But, he did have a nephew.

And Bushrod Washington became a SCOTUS

 

[BKMMAFAN]

Favorite:
Thurgood Marshall

Worst:
Roger Taney.

I think any fair minded originalist would have to agree with Taney's reasoning in Dred Scott.

Spoiler

"The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?

....

In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the [60 U.S. 393, 406] rights and immunities which the Constitution and laws of the State attached to that character.

....

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

....


No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since, the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word 'citizen' and the word 'people.'

And upon a full and careful consideration of the subject, [60 U.S. 393, 427] the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous."

http://caselaw.findlaw.com/us-supreme-court/60/393.html

I think the entire opinion should be mandatory reading in high school history classes. The same prevailing legal theory of interpretation used by Taney and the majority in Dred Scott is shared by at least 4 of the current SCOTUS Justices (I'd put Kennedy as originalist-lite).

 

[BKMMAFAN]

He wasn't on the SCOTUS, but I have to shout out Learned Hand.

 

[Quipling]

Uh. I'm not good at past names. Out of those not yet named I'd say Justice Holmes, Jackson, and Brennan without poring through past cases.

On the current court I like reading Roberts the most. Kagan is fun too.

He wasn't on the SCOTUS, but I have to shout out Learned Hand.

I have to shout out his parents.

 

[Trotsky]

If I'm being honest, Learned Hand opinions are some of the least enjoyable to me.

Also, @PolishHeadlock I just remembered another aspect of Scalia's (and Thomas and Kennedy's) inconsistency: anything related to free speech about abortion. All three were absolutely shameless about being partisans on that topic. Fuck, maybe I don't actually like Scalia and just have rose-tinted glasses due to his company among merry idiots.

Also, Kennedy just fucking sucks. Never understood how anyone could respect him as a jurist.

 

[faustian]

Marshall, Cardozo, John Roberts are 3 off the top of my head that I really admire

Specifically Cardozo's articulation of the selective incorporation doctrine and his reasoning for it in Palko v. Connecticut

The issue was whether the 14th Amendment applied all Bill of Rights guarantees to state governments. Cardozo:

"The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them. What is true of jury trials and indictments is also true of the immunity from compulsory self-incrimination. This too might be lost, and justice still be done.

We reach a different plane of social and moral values when we pass to [those guarantees of the Bill of Rights] brought within the [14th Amendment] by a process of absorption. These in their origin were effective against the federal government alone. If the [14th Amendment] has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed. This is true, for illustration, of freedom of thought and speech. Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom." ​

 

[faustian]

Also, Kennedy just fucking sucks. Never understood how anyone could respect him as a jurist.

Kennedy's opinion in Boumediene v. Bush is some of the most compelling legal reasoning I've ever read, particularly because given what he was arguing for, he basically had nothing to work with (whether GITMO detainees are entitled the constitutional privilege of habeas corpus):

The Framers foresaw that the United States would expand and acquire new territories. *** Throughout most of our history there was little need to explore the outer boundaries of the Constitution's geographical reach. When Congress exercised its power to create new territories, it guaranteed constitutional protections to the inhabitants by statute. *** The Government's formal sovereignty-based test raises troubling separation-of-powers concerns. *** The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury. ​

Kennedy essentially conceded that the GITMO detainees were terrorist enemy combatants, but he turned it into a separation of powers issue by claiming that Guantanamo Bay effectively is sovereign US territory and then asserted that it is in fact the judiciary, not the executive or legislative branches, who will decide whether detainment of prisoners is legal:

In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. *** Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.
​

Given you're a Scalia fan I imagine you'd appreciate his pretty point-blank and scathing dissent:

*** The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application. ***

Eisentrager *** held beyond any doubt that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.

What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. *** Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. *** Today the Court breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every prisoner.

The Nation will live to regret what the Court has done today. I dissent.
​

Lol Scalia brought it hard