Co-blogger Will wrote yesterday, “Last week I nominated Justice Hugo Black as an ‘all time great’ justice on account of his ‘historical significance and legal ability.’ Co-blogger David Bernstein has questioned Black’s greatness a couple of times, so I thought I’d offer a brief explanation.” Will then proceeded to enumerate some of the important precedents Black wrote, and some of the doctrines he invented or helped cement.
I don’t agree with all of Will’s assessments of Black’s importance, but instead of nitpicking those, I’ll raise a bigger point. By Will’s own criteria, greatness is judged by “historical significance” AND “legal ability.” It’s not terribly surprising that Black was a historically significant Justice in the sense that he wrote quite a few influential opinions and articulated some significant doctrines. After all, not only was Black on the Supreme Court for a very long time, from 1937 to 1971, but those years correlated perfectly with the time that New Deal liberals like Black himself dominated the Supreme Court. Few Supreme Court Justices can boast of both having such longevity and being part of the ideological majority (despite some intramural differences of opinion) for their entire tenure. An “above average” judge, or perhaps even a “merely average” judge, would have managed to have significant influence in such circumstances. (William O. Douglas, who overlapped with Black for most of their respective tenures, was too busy first scheming to become president and later raising money to support his various wives and ex-wives to reach even “merely average.”)
So for Black to win the title of “greatness,” I’d want to see some strong evidence that he met Will’s other criterion, great “legal ability.” I just don’t see that. When I read Justice Black’s opinions, I don’t get the sense of “here’s the guy I’d want to write my appellate brief,” not for a simple criminal or civil matter, nor for a great “public interest” case. Not that his opinions show poor legal reasoning ability, at least not by generally awful standards of the results-driven and political-hack populated Courts that Black served on. I just don’t see signs of greatness, and sometimes I see quite the opposite. For example, Will calls Black a “proto-originalist,” but Black’s attempts to use history to support his constitutional conclusions don’t reach the level of mediocrity. If they are examples of originalism, proto or otherwise, they give originalism a bad name.
On the other hand, Louis Brandeis, whom Will has argued does not belong on a list of all-time “great” Justices, wrote fabulous (if ideologically suspect) opinions. Even if I hadn’t been aware of Brandeis’s extremely successful pre-Court legal career, of course I’d want Brandeis to be my appellate lawyer just based on his Supreme Court opinions. I also think that Brandeis was far more influential as a Justice than Will does, but I’ll blog about that sometime in the future, when an article I’ve written on that precise subject is published.
In short, I’ll grant Will that Black had significant influence on American constitutional law. If influence was the only criterion for greatness, I’m not sure I’d be willing to grant Black’s greatness. But once his influence must be combined with his demonstrated legal talent, I’m more confident that Black doesn’t make the “all-time” list. And based on those criteria, I certainly wouldn’t kick Brandeis off a list of great Justices to make room for Black.