The Least Dangerous Branch? LIBERTY, JUSTICE, AND THE U.S. Supreme Court

Before an audience of several hundred scholars, journalists, lawyers, students, and the general public, on October 21, 2006, some of the country’s best and most acute observers of the “least dangerous branch,” as Alexander Hamilton referred to the U.S. Supreme Court, met to consider the court’s current state and recent course. Guided by moderators Jeffrey Rosen (professor of law at George Washington University and legal affairs editor of The New Republic), Lincoln Caplan (former editor of Legal Affairs), and Randall Kennedy (Michael R. Kline Professor of Law at Harvard Law School), the exchanges were lively, collegial, and occasionally disputatious. This was the Foundation’s third annual public symposium hosted by Boston College; previous topics were “Presidential Reputations,” in 2004, and “The Legacy of the Voting Rights Act of 1965,” in 2005. The event may be viewed in full at A sampler follows.

What Makes a Justice a Good Justice?

“The culture has extolled expertise”
David Greenberg

David GreenbergOur notions of what makes a great justice and who should be chosen for the Supreme Court have changed throughout history. In any era, a good mind and legal record have been important, but only in the last 30 or 40 years have the circuit courts—especially the D.C. Circuit Court—become the breeding ground. If you look at the great justices of the 20th century, there are many who did not have experience on the circuit courts—including Hugo Black, Earl Warren, Harlan Stone, and Oliver Wendell Holmes.

The résumés of candidates for the Supreme Court have tended also in the past 40 years to vaunt extensive experience on the faculties of the very top law schools. I’m not saying that isn’t reasonable, but it is different from how it was in other times. Since the Progressive Era, really, the culture has extolled expertise in all the professional realms—medicine, history, academia, and so on.

There are different kinds of justices. Do you highly rate a judge because his lone dissent is brilliant, or because he or she writes an opinion that’s a little less brilliant but somehow manages to get four others to agree with it? Both are valid criteria. Justice William Brennan’s particular talent was for cobbling together majority positions through personal warmth and cajoling. Antonin Scalia is by many accounts quite cordial and civil to his fellow justices in person, but his temperament as expressed in his written opinions probably cost him the Chief Justice post.

The public image of justices is important. If a justice or a judge is giving political speeches and participating in fundraisers, a point can be reached at which the public will cease to have confidence in his or her impartiality, open-mindedness, and intellectual humility.

And yet, we’re in an age of populist style, where presidents half the time don’t wear suits and ties but sweaters, and the idea is to seem as much like an ordinary citizen as possible. There is a way in which a justice’s reputation may be harmed if he or she is seen as too much the expert, too much of the ivory tower.

David Greenberg is a professor of history and of journalism and media studies at Rutgers University, and the author of Nixon’s Shadow: The History of an Image (2003).

“How cloistered the current justices are”
Judge Richard A. Posner

Judge Richard PosnerThe Supreme Court is a political court, and what one wants on such a court is primarily people who have worldly experience and diverse perspectives. It’s remarkable how cloistered the current justices are. They have very limited experience when you compare them to someone like Robert Jackson, a Supreme Court justice in the 1940s and early 1950s, a confidant of President Roosevelt who’d been Solicitor General of the United States and U.S. Attorney General, chief prosecutor at Nuremberg as well as a practicing lawyer. He’d never gone to law school. He was very smart but also very experienced, and it shows in his opinions.

I’ll give an example of what I regard as an extremely dumb Supreme Court decision: Clinton v. Jones. That’s the case in 1997 in which President Clinton was asking for temporary immunity from the sexual harassment suit brought by Paula Jones until his term of office was over. The delay would have been two years. The Supreme Court turned him down, unanimously. Speaking of cloistered, they didn’t realize how explosive a sex case against a president would be, that all sorts of terrible things could happen. It was after Clinton was turned down for immunity that he was deposed by Paula Jones’s lawyers and lied, and impeachment ensued. The country didn’t need this.

One of the problems with conventional legal reasoning, which I regard as largely nonsense, is that it convinces some judges that they have the keys to knowledge of the universe. They come down on one side of a case and they know they’re right because they’ve used some rigorous method that resembles logic or scientific experimentation. You’d like to have justices who are practical and can see train wrecks coming, who have a kind of intellectual suppleness that enables them to deal with a fact-specific case, to distinguish between a sex case against a President and a breach of contract.

Judge Richard A. Posner sits on the U.S. Court of Appeals for the Seventh Circuit and served as that court’s chief judge from 1993 to 2000. He clerked for Justice William Brennan, Jr., has taught at the University of Chicago Law School since 1969, and is the author of Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005).

“Cases, not abstract legal issues”
Renée M. Landers

Renee LandersThinking about the place of doing justice in a justice’s job, two Supreme Court opinions come to mind. A recent example is from a case in 2006, Burlington Northern and Santa Fe Railway v. White, about whether Title VII of the Civil Rights Act prohibits employers from retaliating against workers who bring discrimination claims. In the opinion for the court, which ruled unanimously, Justice Stephen Breyer expressed concern that if an employee could be penalized in the short term by termination or suspension without pay—even if the employee was ultimately paid—workers might be deterred from bringing a discrimination claim. It was a comment about the justice of the case, with Breyer putting himself in the place of the worker trying to stand up for his or her rights.

The other opinion that comes to mind is a dissent that Thurgood Marshall wrote in The United States v. Kras, in 1973. This case, decided 5 to 4, was about whether people who were indigent and could demonstrate that they were unable to pay the fees should be entitled to a waiver of bankruptcy court filing fees. The majority held no—that there is not a constitutional right to relief from one’s debts in bankruptcy. Justice Marshall wrote that the members of the court might disagree about what the Constitution requires, but they should at least understand the impact of their decision on real people’s lives.

Judges are not law professors, and courts are deciding cases, not abstract legal issues. Doing justice is an important consideration for judges.

Renée M. Landers JD’85 is an associate professor of law at Suffolk University Law School and served on the Massachusetts Commission on Judicial Conduct.

©2007 The Massachusetts Foundation for the Humanities

Published in Mass Humanities, Spring 2007