Categorizing Justices

Jack Balkin, in conversation with Sandy Levinson, has proposed dividing SCOTUS justices into two categories. The first is those whose "primary achievement was that they sat on the court," and who would not otherwise be much remembered. The second group comprises those who "led noteworthy lives before they became Supreme Court Justices," and who would be biography-worthy had they never been appointed to the Court. The late Justice Ruth Bader Ginsburg obviously belongs in the second category, as her accomplishments as a pioneer women's rights litigator would alone establish her greatness.

The shortcoming I see in the Balkin/Levinson approach is that there are so few justices other than Ginsburg who belong in the second category. Balkin's post names no others. Writing on Prawfs, Howard Wasserman adds the obvious names Thurgood Marshall and William Howard Taft, to which I would add Louis Brandeis. But that's about it. Many other justices had notable pre-judicial careers -- Robert Jackson was attorney general; Roger Taney held three cabinet posts; Hugo Black was a U.S. senator -- but nothing that would likely be called personal greatness. Perhaps Salmon P. Chase qualifies. He was Secretary of the Treasury during the Civil War, and before that he was known for his abolitionist law practice as the "attorney general of fugitive slaves," but that still brings us only to five. John Jay and Joseph Story would make seven, out of 114. That is not so much a categorization as the identification of an elite few.

In a book review for The New Rambler, I proposed a different, and potentially more even, division between justices whose lives had been interesting in various ways, and those who were just basically high-achievers. I called them "way-makers" and "path-takers." The review compared recent biographies of Sandra Day O'Connor, a classic way-maker whose determination and initiative took her from an Arizona ranch childhood to the Supreme Court, overcoming obstacles all the way, and John Roberts, who essentially succeeded at everything he attempted on a consistent upward path. The categories don't break down by ideology. Clarence Thomas is an exceptional way-maker, while Stephen Breyer is a classic path-taker. Nor does the distinction say anything about the quality of their judging once on the Court. Rather, it is simply a readers' guide to potential judicial biographies.

Where the Balkin/Levinson classification is meant to determine whether someone would hypothetically merit a biography other than as a justice, I think my proposal describes whether a post-judicial biography, however much merited, would be fascinating to read. For Sandra Day O'Connor the answer was a resounding yes; for John Roberts, let's face it, the answer was not so much.

 

Comments

[Greg Sergienko]

I'm a bit surprised that you're leaving out Earl Warren and Benjamin Cardozo of the Balkin/Levinson category of those who had significant pre-Supreme-Court experiences.

Warren was governor of California and the only governor of the state yet to be elected to three consecutive terms. He was its attorney general before that. He was a running mate to Dewey. For American history, his central role in Brown v. Board of Education and the re-districting cases means that his judicial service is what he's most remembered for, but his judicial service was pre-eminent, in my view, such that only Chief Justice Marshall had as big an effect on American history.

Cardozo was a bit of the opposite situation. He is well remembered as a judge, but his most influential work was before his appointment on the Supreme Court. Of the cases for which he's remembered, the great majority are New York Court of Appeals cases not United States Supreme Court cases.

Okay, back to work.

[Steve L.]

Thanks, Greg. Those are both good suggestions.

Steve

[PaulB]

Greg, I's say that Warren's greatest role as CJ was on criminal law. The overthrow of Plessey was well underway by the time Warren was confirmed. Short of having a southern Democrat replace CJ Vinson in 1953, Brown would have been unanimously decided the following year in exactly the same manner.

Redistricting had major implications for society but Warren's vote was not needed in order to make that happen. The criminal law cases on the other hand often involved 5-4 votes. The most notable case that everyone who's ever watched a crime show is familiar with is Miranda. Not only did Warren read his 50 or 60 page decision on this from the bench, but his choice to outline exactly how to conform to the ruling ("you have a right to remain silent...") must be unique in Supreme Court history.

[Erik M Jensen]

Charles Evans Hughes? The analysis is complicated, I suppose, by his having two different terms on the Court, but he was a significant figure even before his first appointment.