John Marshall is unquestionably first and foremost.
I disagree with Holmes, though. I would not say, "If my fellow citizens want to go to Hell I will help them. It’s my job.” I would’ve said, “If my fellow citizens want to go to Hell, I will not stand in their way, if they do not violate the Constitution in going there.”
Joseph Story and Sandra Day O’Connor ought to be on that list.
I agree with most of the list except on two points:
In the format of an “All-Star Team” you would expect nine listed justices to represent the current maximum number of justices that can hold office at one time, instead of the eight named in the article.
Robert Jackson may have been the best writer in SCOTUS history and famous for his performance as American Prosecutor at the Nuremberg Trials however I do not feel he is on par with the rest of the list of SCOTUS justices, certainly not at #5 where he is ranked. I’m not sure how I’d order it but I’d see someone like David Davis or John Harlan on the list before Jackson.
Scalia because of his long service as a witty tribune of originalism (much as I often disagree with him). O’Connor for being the first woman on the court, yes, but more importantly for being a very influential swing vote.
Thurgood Marshall’s best days were before he was appointed to the court. Once there, he was little more than a second vote for Brennan (much as I often agreed with him).
Rehnquist is usually credited more with the recent shift of the court rightwards. He seems a better representative of that movement then Scalia. Plus the author says he’s excluding current Justices.
Plus the list basically jumps over the entire 19th century. Certainly there were lots of important decisions regarding slavery, segregation and business rights. Granted history eventually turned against those decisions, but it seems a little weird to leave them out of a list that claims to count historical importance as a major factor in being included.
O’Connor? Her signature moment was voting to subvert the Constitution she had sworn to uphold, and the democratic process itself, with a vote she cast for no apparent reason than Scalia’s charm. Her place in history is with Taney. Her being the first woman on the court is the answer to a trivia question, nothing more.
That’s actually why I mentioned David Davis, he was on the (historically) right but losing side of a lot of those decisions. He was also the writer of Ex Parte Milligan which struck down the trial of a citizen before a military tribunal during the Civil War as unconstitutional.
It also helped flesh out the rights of citizens in extreme moments of national crisis, when they are most likely to be at risk and specifically fleshed out military jurisdiction. The Constitution had specified that habeas corpus could be suspended, but the parameters of that were uncertain. Davis’ decision in Ex Parte Milligan established that while HC could be suspended, that just allowed the government to hold someone without trying them (as they did with Lambdin Milligan), but it did not have the right to try them and convict them in a manner contrary to the constitution.
Hence my writing, “And Antonin Scalia probably will be, someday.”
Davis’s decision in Milligan is very good, and has been cited quite a bit since 9/11. My favorite passage:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.
Speaking as a right-winger who admires Antonin Scalia tremendously and sgrees with most of his decisions…
He’s not one of the great all-time justices. He’s a reliable vote for my side, which is nice, but it’s not enough.
To make a comparison, and to give the devil his due, which would be better foir liberals: a Supreme Court of 8 Antonin Scalias and and 1 William Brennan or a court of 5 Antonin Scalias and 4 Thurgood Marshalls?
The answer is… liberals would be better off with a Court of 8 Scalias and 1 Brennan. Because Brennan was so charming and so persuasive and such a brilliant negotiator and diplomat that, once in a blue moon, he’ piece together enough votes to win, even when he was a minority of one. Thurgood Marshall, on the other hand, had no intellectual skils, no powers of persuasion, no diplomatic talent. He would NEVER have won over even one vote.
Get the idea? There’s MORE to being a great justice than voting the right way. A good justice votes my way, but a GREAT one wins over other justices to his side, including some who normally wouldn’t be on his side.
Antonin Scalia writes brilliant, witty dissents, but he almost never wins anyone over to his side.
I’d have O’Connor on the list for her dissents on South Dakota v. Dole and Kelo v. New London. As for your obvious reference to Bush v. Gore, what would you have SCOTUS do when SCOFla did everything they could to change election law after the fact.
Dissents? As in ineffectuality? That’s what does it for you?
First, note that they did nothing of the sort. Second, note that state election law is a matter for the states to decide, within limits set by the US Constitution, and that is what was happening. Third, note that nothing in the US Constitution was being violated by what Florida was doing. Somewhere along the way, note that the Constitution assigns decisions about the validity of electoral votes to the House, not the Supreme Court. There are many more items after that if you really want to keep this up, but I suggest that you really don’t. In short, what “I would have had the Court do” is what the Constitution allows and requires it do: Stay out of it.
But the last would be to make a ruling that you didn’t have to deny would set a precedent for any other case. How cowardly was O’Connor to sign on to that? On top of the craven partisan dishonesty of signing on to all the previous items? For that, you *admire *her?
I know you got your desired result in the election, but you don’t seem to have come to grips at what the cost has been to the Republic and the Constitution in so doing.
Are you forgetting that only 2 Justices said that Florida was NOT violating equal protection with the various ways of counting ballots and that the two that dissented (Stevens and Ginsburg) wrote a dissent so partisan that it made the majority opinion look positively neutral by comparison.
Have you even read or heard the oral arguments in that case? Everyone (even SCOFla) signed off of Dec 12th as a hard deadline. The two issues were Article II which says the state legislatures decide how to chose electors and 3 USC 5. It was O’Connor that addressed that very issue when she asked Olson if Article II meant that the Florida courts had to give special deference on the very specific case of selecting presidential electors as opposed to any other state law.
Second, while Scalia was babbling about not knowing the difference between a protest and a contest, it was O’Connor that brought up Boardman which Boies punted on.
The big issue is assuming recounts must be done by the 12th and that a uniform standard must be applied, could they be done by the 12th? Here Boies really messed up and may have handed the election to Bush. CJ Rehnquist asked if it could get through all of the appeals (state and fed SC) by the 12th, Boies said yes, we’ve shown we can do it. But wait, don’t we have to take into account the time for the Leon County Circuit judge to review the returns?
The TL;DR version. Sure we can do it in time but even if we can’t we should still get what we want even though it uses a standard that most of you (ultimately 7 out of 9) say you’re uncomfortable with. In that situation, you give them a absolutely, positively, unquestionable yes without hesitation. If on the 13th the recount is still going on, then deal with it then but why give the Justices any room to doubt on an issue that is about the only thing everyone has agreed to i.e. the recounts had to be certified by the 12th.
As the deciding vote in many cases, her decisions were well thought out showing not only a brilliant legal mind but also a good understanding of the role of the Courts. She was also not afraid to call out her conservative colleagues when she thought their decisions were wrong. Besides the two I mention, how about her opinion in Lawrence where she ruled on a very narrow point of law which is something more judges and justices should do.
Not that I think much of his legal reasoning, but Taney surely was one of the most historically significant.
Samuel Freeman Miller, who was an associate justice on the post Civil War court, was probably most responsible for the early 14th Amendment jurisprudence.
There’s also more to being a great justice than winning the specific case at hand.
A brilliant legal mind can influence the legal and judicial landscape beyond the specific case. In that context, Scalia would seem to be the more influential. I’m not any sort of legal scholar, but you see a lot more discussion of legal principles enunciated by Scalia than in many of the others who may have “won” more cases for their side.
No, because that’s not what they said, only that EP issues were *involved *- and they are. Florida had different voting technologies with different error rates, which of course requires differing corrective actions to restore equal protection. But the Court’s dishonest reading was that the differing corrective actions were themselves a violation. To make sure they couldn’t be fixed either, they helped run out the clock with a wonderfully-written stay order. Scalia’s breathtakingly dishonest concurrence:
In plainer English, “It would damage Bush’s credibility as President if we ever let it be determined that he had lost the election, so we can’t let that happen”
Did you also miss the part about it not being the Court’s responsibility at all? It’s in the Constitution, a fascinating read by the way.
It’s also amazing how often that too is misrepresented. There is no fucking deadline under the Constitution; it’s up to the House to rule on the legitimacy of a state’s electoral vote. That’s in the Constitution too. The “deadline” was about stiffing the cheated loser’s right to challenge in state court, and that’s when the clock had to be run out to.
I think you know that a good-faith effort could have done that, and no, it wasn’t the fault of Boies that Bush, and his brother the Governor, and his campaign chairperson the Sec State, and his campaign adviser the Fox News head, staged the “Brooks Brothers Riot” with imported House staffers so the Fox-only TV watchers on the Court would see it.
Which happens to be what the Constitution and the principles of democracy require, remember?
So O’Connor asked a couple of tangential questions. Big whoop. Please note that the passage of time has in no way legitimized the actions she and her Party Before Oath colleagues took. They even knew it wouldn’t when they added that craven no-precedent clause.
But are they principles, or rationalizations? How many of Scalia’s opinions are based on anything other than a desired result in a particular case, one which is utterly predictable even by those of us without the benefit of even a day in law school?