Tom Goldstein: “For almost everyone, Justice Stevens’s retirement will be a deeply sad event. He is a great man – a historic figure.”
I don’t think I’ve ever been sad when a Supreme Court Justice has retired. Surely hanging on like Stevens for thirty-five years until age ninety is long enough to suit anyone. There’s a fine line between distinguished long term service as a Justice, and clinging to power well-beyond seemliness, and it would almost certainly be better for the Supreme Court if more Justices emulated Souter and O’Connor, and fewer Rehnquist.
Stevens has been around a long time, and has inevitably written some important opinions as a result, but “greatness” is not an adjective that comes to mind when I think of his career. It’s not that I don’t think there have been “great” Justices whose jurisprudence I profoundly disagree with: Brandeis, Brennan, Holmes, and Warren, all come to mind easily. I just don’t see any reason to put Stevens in that category.
And I’ve never gotten over just how ridiculous his reasoning was in his dissent in Texas v. Johnson, the flag-burning case, among the most embarrassing opinions of the last twenty-five years. Beyond that, he has been a competent, hardworking, sincere, and somewhat idiosyncratic (especially earlier in his career) Justice. But let’s not confuse longevity with greatness.
Rogervzv says:
A great point about staying on past the point of seemliness. A single 18 year term for Supreme Court justices, and maybe Federal judges too, would be a fine solution to this very real problem.
February 23, 2010, 10:32 pmDC says:
How is Stevens’s anticipated retirement in any way like the end of Rehnquist’s service? Notwithstanding his stumble during the reading of his Citizens United dissent, there’s no evidence that his intellectual powers nor output are significantly impaired. You may disagree with Stevens’s views, but I really don’t see how you can deny that he has made a substantial mark on a great number of areas of the law, and continued to do so up until his final terms on the Court. Coupled with his extraordinarily long service, this is certainly enough to qualify him as historically great.
February 23, 2010, 10:37 pmConstantin says:
This comes from the same analysis containing effusive praise for the politics of the Sotomayor nomination, claiming her opposition didn’t lay a glove on her. In reality, it, along with the nearly contemporaneous Henry Louis Gates debacle, served for many Obama crossover voters as the realization that he was every bit the race-obsessed ideologue he wasn’t allowed to be called before his coronation.
Not one of Mr. Goldstein’s better efforts, though I suspect his conclusion probably is correct anyway.
February 23, 2010, 10:39 pmbrentpeterson01 says:
I also thought that the reasoning in that dissent was odd. On the other hand, one year later three justices of the Supreme Court–including Chief Justice Rehnquist–endorsed that reasoning when they joined Justice Stevens’s dissent in United States v. Eichman.
I’m not sure I would go so far as to call Justice Stevens “a historic figure,” but I think he had a significant impact on the law. Justice Stevens’s Chevron opinion is obviously important, and his initially idiosyncratic take on the equal protection clause ended up winning many converts on the Court.
February 23, 2010, 10:40 pmDavid Bernstein says:
DC, my point was that if we praise Justices (as you wind up doing) simply for longevity, we’re encouraging Justices to hang on longer than they should.
February 23, 2010, 10:41 pmDavid Bernstein says:
And enough with this service nonsense. Does anyone think that Justices stay around for 25, 30, 35+ years because they think this is necessary to “serve,” as opposed to because they enjoy the power and prestige?
February 23, 2010, 10:44 pmMichael B says:
Amen. Stevens lived long and served long on the court. An accomplishment, but hardly worthy of the stature of greatness.
Would even an O. W. Holmes – certainly noted for his longevity, served valiantly in the Civil War, etc. – rightly be considered “great,” in his role as a justice?
And what would be considered viable standards of “greatness” for a justice of the Supremes, or any justice?
USSC trivia question: what (eventual) justice, friends with Holmes, had his own home in D.C. given the sobriquet “House of Truth,” apparently by Holmes.
February 23, 2010, 10:47 pmDavid Bernstein says:
Well, one definition of “greatness” for a Justice would be a wildly disproportionate impact on the course of American jurisprudence. Another would be a Justice who wrote unusually brilliant opinions, even if on the losing side. A third would be a Justice with unusual political skills, able to consistently garner at least 5 votes for controversial propositions. I don’t see Stevens qualifying on any of these metrics. Holmes qualifies on 1, Brandeis on a combination of 1 and 2, Brennan on 1 and 3, and Warren on 3.
February 23, 2010, 10:54 pmMichael B says:
Perhaps, though I’d dissent from “wildly disproportionate” in and of itself as a criterion. (Stalin and Hitler had such an impact upon historical events, but I wouldn’t consider them “great”.)
February 23, 2010, 10:59 pmDC says:
But it’s not his longevity standing alone. Longevity is neither intrinsically bad nor intrinsically good. With Stevens, his long tenure enhances his historical standing because his contributions to American law have been and continue to be significant.
For the justices that stay on the Court past the point when they no longer have their full faculties, I’m with you — the legacies of Douglas, Harlan, Marshall, and Rehnquist are all diminished somewhat by their failures to step down earlier. How is Stevens like any of them, though?
February 23, 2010, 11:00 pmMike Schilling says:
Because if Obama weren’t a racist, he could have nominated a regular white person.
February 23, 2010, 11:06 pmBob from Ohio says:
As I commented on the Kerr post, that quote is very silly but what is embarrsassing about:
I think it is 100% accurate.
February 23, 2010, 11:17 pmDavid Bernstein says:
Stevens has his reasoning backwards: it’s precisely because the flag is such a powerful symbol that one can’t easily substitute other speech to make the same point, which is why defacing the flag must be protected by the First Amendment.
But that’s not the embarrassing part. It’s the part where he doesn’t see the difference between defacing public property and defacing your own flag.
February 23, 2010, 11:21 pmSuperSkeptic says:
Ridiculous, yes. But, to be fair, on par in ridiculousness was the other dissent in that case from Justices Rehnquist, O’Conner, and White.
Hard to say if it’s the most “embarrassing opinion[] of the last twenty-five years[]” though – but then again I shame easily.
February 23, 2010, 11:24 pmbadlaw says:
I have to say, this was really great. Like I said, you have a subtle sarcastic tone to many of your blog posts. It makes them fun to read.
February 23, 2010, 11:27 pmMark Field says:
I think we should generally substitute the word “important” for the word “great” when we characterize historical figures. That way we can acknowledge that Hitler and Stalin were important to the 20th Century without in any way being great (except greatly evil). For less polarizing figures, it would be easy to reach agreement that FDR was “important” even if one’s politics recoiled at the idea that he was “great”.
I also think it’s a good idea to wait 30-40 years before we try to judge most historical figures. It takes a while for all the facts to come out and to gain some perspective.
February 23, 2010, 11:51 pmEric Rasmusen says:
Good post. A commenter said,
That’s Prof. Bernstein’s point. It’s hard to be on the Supreme Court and not be an important person, especially if you’re on it a long time. It’s a great way for someone with zero talent to make a mark on the law. If you’re unscrupulous and vain, you get to make an especially big mark, because you can be a swing vote all the time, and bargain to get to put your name on the opinions your clerks get to write.
February 23, 2010, 11:54 pmTRE says:
Let’s not forget his factually incorrect citation of Miller in heller.
February 24, 2010, 12:04 amConstantin says:
Or at least a “typical” white person. He knows all about those.
Seriously, I didn’t say he was a racist. I do think he sees things primarily through the lens of race, which is different. And the two events I mentioned convinced at lot of Americans of the same thing.
February 24, 2010, 12:06 amReader says:
This is a great post. Bernstein is on a roll, and has become possibly the most interesting blogger other than Eugene. I’m going to read that opinion tomorrow to fully appreciate this. Thanks David.
February 24, 2010, 12:18 amyankee says:
Well, now that you’ve put this in issue, I feel obliged to troll by suggesting that the most embarrassing opinions also include the Supreme Court’s contortions required to ensure the election of its favored Presidential candidate. Justice Scalia’s histrionics about Coloradans acting to protect themselves from the rich and powerful homosexual lobby would qualify as well.
February 24, 2010, 12:26 am1040 says:
Kummelweck?
February 24, 2010, 12:53 amtmiller says:
I would think that the majority opinion Stevens wrote in Kelo would foreclose on any perception of his ‘greatness’.
February 24, 2010, 1:11 amorca says:
Should from who’s point of view? It surely benefits the Justices to serve until they die…are you making some kind of socialist “for the benefit of society as a whole” type argument?
February 24, 2010, 1:11 am1040 says:
a. If anybody was “coronated”, it was Bush.
February 24, 2010, 1:19 amb. It requires a special level of bigotry to see Obama’s actions as primarily motivated by race.
Drib says:
Stevens is great.
February 24, 2010, 2:14 amConstantin says:
Tell it to the good Rev. Wright. He’s the bigot. And our president sat and listened to him, without objection, for twenty years. That’s just one line on the resume.
But, by all means, keep throwing the race card at me. I’m the bad guy.
February 24, 2010, 3:15 amDuffy Pratt says:
Noah Cross said it best: “Politicians, ugly buildings, and whores all get respectable if they last long enough.”
February 24, 2010, 3:43 amJeff Walden says:
“should” in the interests of the people, who indirectly hire justices for the job and expect proper fulfillment of it, including stepping down at a time which will least disrupt the proceedings of justice. “should” in the interests of the country that elected Nixon that would have had to endure a much more painful impeachment of him had he not acted rightly by resigning. This doesn’t seem all that hard to distinguish as not being socialism (rather, expecting quality work from a hire, stated crudely), or maybe your response is just too subtle for me to recognize it as snark.
February 24, 2010, 3:48 amravenshrike says:
Can anyone point to a truly well-written Stevens majority opinion on any remotely controversial subject? At all?
February 24, 2010, 4:09 amjcm says:
Why ridiculous? Most people in the USA agree with him. An he was right
February 24, 2010, 5:38 ambadlaw says:
LOL.
I agree, though.
February 24, 2010, 6:35 amDYSPEPSIA GENERATION » Blog Archive » Let’s Not Confuse Longevity with Greatness says:
[...] Read it. I don’t think I’ve ever been sad when a Supreme Court Justice has retired. [...]
February 24, 2010, 8:04 amcorneille1640 says:
I skimmed, but did not read that closely, Goldstein’s article that Mr. Bernstein linked to. It did not seem to me that Goldstein thought Stevens “great” simply because of his (Stevens’) longevity. Maybe Stevens isn’t great after all, but I don’t think that was Goldstein’s reasoning.
Color me naive, but it’s probably a little bit of both. I believe the justices–or any “public servant” in a position of real power–probably convince themselves somehow that they do what they do to serve the public good. It works in a similar way that philanthropists convince themselves that they donate to charity for the love of mankind and not for self-aggrandizement, or that some professors convince themselves that they profess because they want to challenge young minds or and pursue truth and not for the security of tenured appointment at a very livable salary. *shrug*
February 24, 2010, 8:13 amFrank Drackman says:
Stevens lost all credibility with me whenever he started wearing those rediculous bowties…And I’m bipartisan, Rehnquist blew 30 years of Constitutional Genius with that gay robe with the stripes on the sleeves…And I’m not bein a hater, heard on C-Span that he got the idea from a Gilbert& Sullivan Opera character, the Lord Chancelor who wore a similar costume to arbitrate a dispute between a colony of “Faries”(not makin this up)…
Frank
February 24, 2010, 8:28 amSnaphappy says:
When Justice Stevens retires, nobody will describe the real reason for his opinions in the Gitmo cases:
1. Justice Stevens wrote a terrible opinion in Clinton v. Jones, staing that permitting civil litigation against a sitting President would not be too much of a distraction.
2. The Jones case resulted in Clinton being forced to take part in a deposition, at which he denied his affair with Monica Lewinski.
3. The Monica Lewinski scandal and the Clinton impeachment overshadowed Clinton’s entire second term, distracting him from important matters like Osama Bin Laden.
4. Resulting in 9/11
5. Resulting in the wars in Afghanistan & Iraq.
6. Resulting in opening Gitmo.
So Stevens last greatest opinions have been nothing more than an effort to make up for the mess that he caused with Clinton v. Jones.
February 24, 2010, 8:32 amruuffles says:
Either that was some super snark or you forget Clinton was unanimous.
February 24, 2010, 8:54 amegd says:
When people look back at the various courts that Stevens has sat on, most won’t remember him. White, Rehnquist, Ginsburg, Marshall, Scalia, those are the justices who history will remember. Stevens will be a footnote.
Now Taft, there was a great president (under some definitions).
February 24, 2010, 8:54 amDaniel Chapman says:
that was obviously a joke, ruuffles.
February 24, 2010, 8:59 amDjDiverDan says:
Count me among those who won’t feel an ounce of regret or sadness when Justice Stevens retires – I don’t doubt his intellectual ability, but numerous decisions of his, including not least his dissent in Heller, have given more than ample reason to question his intellectual honesty.
February 24, 2010, 9:18 amModa says:
Yeah, because Stevens only authored the most-cited case in the history of the US Supreme Court.
Scalia? Are you kidding? What’s he going to be remembered for? Writing witty dissents and Bush v. Gore.
Oh now there’s irony. I’m with Posner on this one.
February 24, 2010, 9:29 amwhizzer_white says:
let’s also not forget that william douglas served most of his last two years on the court from a hospital bed.
February 24, 2010, 9:31 amCalderon says:
Moda said Scalia? Are you kidding? What’s he going to be remembered for? Writing witty dissents and Bush v. Gore.
Do you really think Scalia is less likely to be remembered than Stevens? Among other things, Scalia is going to be remembered for making originalism an influential method — probably the dominant method — in constitutional interpretation (as opposed to prior “living constitution” theories), and for promoting textualism in interpreting statutes (as opposed to prior “purpose-driven” interpretations). He’s also going to be remembered as the driving intellectual force in making the Supreme Court more conservative after the liberal period of Warren / Brennan / Douglas. Now, of course, there were a number of scholars and circuit court judges who helped entrench these doctrines, but as a Supreme Court justice Scalia is going to be the most prominent.
In my opinion, Scalia clearly has been the most important and influential justice since Brennan. Even though he’s written a lot of dissents, he’s pulled the Court toward fighting within his methodological frameworks.
February 24, 2010, 10:14 amjustaguy says:
Stevens will be remembered as the “Junk Science Justice” for his opinion in Massachusetts v. EPA. There he not only stretched the standing precedents to achieve his desired “junk outcome” to an unbelievable extent but also ignored Chevron deference and redressability. He burst through these established precedents all in order to follow popular junk science. As the global warming fraud unravels, he will have a place in the recriminations — The Junk Science Justice.
February 24, 2010, 10:16 amorca says:
No snark intended. Right wing American “conservative” philosophy is just “Me first, screw everybody else” these days. I’m surprised whenever I see a “For the good of society” argument made in the rightosphere.
February 24, 2010, 10:33 amCan't find a good name says:
Stevens wrote Brown v. Board of Education? I always thought that was Earl Warren.
February 24, 2010, 10:48 amMatt says:
How about Justice Scalia’s dissent in Lawrence v. Texas? (As long as we’re talking about the most embarrassing opinions of the last twenty-five years – and in Scalia’s case, one of the most shameful and poorly reasoned, as well).
February 24, 2010, 10:55 amCJColucci says:
Frank Drackman says:
Stevens lost all credibility with me whenever he started wearing those rediculous bowties…
How old are you? There’s a good chance he has been wearing bowties since before you were born. It’s a sure thing, unless you’re a very old person wired into the 1950′s-’60′s Chicago legal community, that he has been wearing them since before you heard of him.
February 24, 2010, 10:55 amRowerinVA says:
If “greatness” is going to be different from “I really agree with this person” or “this person didn’t die or retire young,” it needs to involve leadership or at least influence over a faction of the Court or the academic or practitioner community or a number of key legal issues. By that standard, Scalia has it. Breyer has it. Warren certainly did. Souter didn’t, Stevens doesn’t. Brennan and Rehnquist are harder calls. Sotomayor didn’t have it in the appellate courts — despite a great resume — but on the Supreme Court, who knows?
The odd cases are O’Connor and Kennedy. They didn’t/don’t have any leadership position but have served as two of the most important “5th vote” swing votes in history. Does being episodically crucial equate to greatness? I don’t think so but I’m open to the argument.
That is, if anyone in his right mind cares much about this labeling exercise, which you shouldn’t.
February 24, 2010, 11:02 amArthur Kirkland says:
I have not noticed that Justice Scalia attempts much to persuade anyone; it seems far more likely that he found himself moving into majorities as vacancies occurred during the terms of Republican presidents than that he wrestled the likes of Rehnquist, Thomas, White, Alito and Roberts into any conservative votes.
February 24, 2010, 11:08 amModa says:
I have no idea why you’d think Brown would be the Court’s most cited opinion. It’s Chevron, if you were wondering.
So in the last 20 years or so? That’s not really saying much. This whole originalism movement is relatively novel and so far hasn’t had much of an impact on the actual state of the law. We’ll see if it goes anywhere beyond Scalia’s well-written dissents. Somehow I doubt it.
February 24, 2010, 11:11 amPubliusFL says:
http://heinonline.blogspot.com/2009/01/most-cited-us-supreme-court-cases-in.html
February 24, 2010, 11:14 amModa says:
You realize Hein Online doesn’t search state/federal case law, or administrative law, right?
February 24, 2010, 11:21 amDon de Drain says:
Frank Drackman–
Personally, I think whatever “greatness” can properly be attributed to Stevens is a direct result of him wearing bow ties.
And Rehnquist’s stripes on his robe undoubtedly made him a much better justice than he would have otherwise been.
Did I mention that I wear bow ties and that I was a member of the Georgetown Gilbert & Sullivan Society while attending law school?
February 24, 2010, 11:23 amModa says:
PubliusFL -
Timed out before I could edit, but if I search LexisNexis for Chevron cites I get over 20,000. Naturally if your search engine has a huge bias towards journals you will get things that people like to write about, and if you don’t have a lot of case law, you won’t get a lot of what actually matters.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=988373 – a paper by Sunstein and Miles claiming Chevron is the most cited case in public law (which includes constitutional law, if I recall correctly).
February 24, 2010, 11:28 amAnon21 says:
Ok, well this certainly wins the award for “Worst Prediction of Stevens Legacy.” Let me guess, justaguy: despite your humble moniker, you are a world-renowned climatologist, who has many well-informed, substantive objections to the scientific consensus on anthropogenic climate change.
Beyond the ill-informed rantings of the delightful denialist contingent here at this wonderful blog, I think I do agree with Prof. Bernstein about the broader issue, which is unusual. Stevens is a very sharp guy and has been a highly competent Justice, but I don’t believe he’ll go down in history as one of the greats. I say this as someone who generally agrees with his jurisprudence, although not his much-maligned flag-burning opinion. Indeed, I don’t think there are any true greats on the current Court other than Scalia, although Roberts (and obviously Sotomayor) has time yet to establish greatness.
February 24, 2010, 11:33 amSarcastro says:
[RowerinVA has it. The reflexive Stevens haters miss the forest for their particularly despised trees (good luck getting "junk science justice" to stick!). So do the lovers, since a huge body of cases has no relation to merit as a justice, only to sticking around and accomplishing the inevitable result.
In my uber-liberal law school's legislation class, we learned Scalia changed statutory interpretation for the foreseeable future. I'd say that's great.]
February 24, 2010, 11:36 amARS says:
“[S]anctioning the public desecration of the flag will tarnish its value – both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it.”
I love it.
February 24, 2010, 11:37 ambrad says:
I like Stevens on vicarious liability in 1983 cases, but other than that I can take or leave him.
February 24, 2010, 11:44 amMashina says:
I tend to agree with Professor Bernstein in his posts about the Middle-East, Israel, and NGO’s. So it is with a bit of displeasure that I disagree with his ideas on Steven’s dissent in Texas v. Johnson.
Now, I wouldn’t expect a libertarian-ish type to AGREE with Steven’s reasoning, however to either willfully or ignorantly misunderstanding Steven’s reasoning is a whole different matter.
Clearly Steven’s sees the difference between defacing public property and defacing one’s own property in the form of an American flag. That, of course, wasn’t the point.
The point was that perhaps we don’t protect defacing public property such as monuments AS property, but as a symbol. And therefore, the flag should also be protected as a symbol.
I totally get why his opinion wouldn’t be Professor Bernstein’s cup of tea, but the opinion doesn’t go outside the bounds of logic. It is certainly reasonable and to call it the “worst opinion” of the past 25 years ignores so many “dogs” written by Justices Marshall and Brennan, that it seems almost absurd to put Steven’s opinion in Texas v. Johnson in that category.
February 24, 2010, 11:46 amCalderon says:
Moda said So in the last 20 years or so? That’s not really saying much. This whole originalism movement is relatively novel and so far hasn’t had much of an impact on the actual state of the law. We’ll see if it goes anywhere beyond Scalia’s well-written dissents. Somehow I doubt it.
Being the most prominent of 20 years worth of justices seems like a significant achievement to me. I think he’s also second to Brennan of the last 50 years, though that’s more complicated to defend given the overlap among the importance of Brennan, Warren, and Douglas. On originalism not having an impact on the state of the law, there are some cases (Heller most recently) where it seems to have a determinative impact. Moreover, most US Supreme Court cases involving constitutional interpretation now at least examine materials on the original meaning of the Constitution, which is a significant impact. Finally, Scalia’s textualism probably has a greater importance for the day-to-day work of attorneys and judges.
As a non-snarky aside, my bet for most-cited case by other judicial decisions would be Anderson v. Liberty Lobby or one of the other summary judgment decisions from the mid-80′s.
Arthur Kirkland said I have not noticed that Justice Scalia attempts much to persuade anyone; it seems far more likely that he found himself moving into majorities as vacancies occurred during the terms of Republican presidents than that he wrestled the likes of Rehnquist, Thomas, White, Alito and Roberts into any conservative votes.
Scalia helped set up methodological frameworks for other conservative justices and judges to support their decisions. Even if you could say that certain justice and judges would have ended up at the same ultimate result, they rely on the doctrines Scalia has promoted in getting there. His importance goes beyond Supreme Court decisions, because there seem to be a lot of lower court judges, particularly on the more conservative side of the spectrum, who use his textualism and originalism to decide cases.
February 24, 2010, 11:52 amGo Vols says:
Scalia’s impact, IMO, will be viewed as stronger outside the Court than on it. His trenchant attitude may have lost him some votes from Kennedy and O’Connor. However, his undeniable intelligence and well-written dissents (which, strangely, have always struck me as sharper than his majority opinions) did a great deal to change debates in the legal academy, galvanized young conservatives, and shifted the debate over interpretation.
That said, is this the second time that a poster has jumped on what is probably nothing more than a premature eulogy of Stevens’ career? Don’t we often say nice things about people when they retire, or avoid saying negative things, out of simple courtesy? Assume Pf. Bernstein retires in thirty years, and his dean notes his “greatness.” If I then write on my blog that “Berstein shouldn’t be described as great; he wrote some interesting things about early 20th century intellectual legal history, but doesn’t match the heights attained by Sunstein, Volokh, Epstein, and Posner,” would that strike the readers as proper? Of course, maybe I’m clutching my pearls here.
Constantin, there is exactly one person on this board “obsessed with race”–you. Sotomayor was a patronage pick, pure and simple. It isn’t about “viewing things through race”; it’s about pandering to an increasingly influential voting bloc. While not exactly praiseworthy, appointing for patronage is as old as the appointment process. I also appreciate your special insight into how a “majority of Americans” changed their views on Obama following the nomination process.
In any case, was Reagan only “seeing things through the prism of gender” when he appointed O’Connor? Was Bush only “seeing things through the prism of race” when he appointed Thomas? Because there’s not much doubt if either of those individuals were white men, they would not be on the Court.
February 24, 2010, 11:58 amPubliusFL says:
I do. I’m not the one who suggested that Brown was the most-cited case. I offered the link as a potential explanation of why “Can’t find a good name” said so.
February 24, 2010, 12:00 pmdirc says:
You left out the bowling ball landing on the teeter totter, which launched the diver into the pool, which distracted Mr. Clinton and caused him to propose to Hilary Rodham, which left him susceptible to the attractions of other women, which resulted in his actions that led to the grounds for the civil suit.
I’m not sure if your logic is tortured, or has just been subjected to enhanced interrogation.
February 24, 2010, 12:12 pmBob from Ohio says:
You must be reading a different case. Johnson did not burn his own flag.
February 24, 2010, 12:17 pmDJR says:
Neither Brown nor Chevron even comes close to the citations for the most cited case. Both of those cases decided important substantive law. The most cited case most likely decided relatively unimportant procedural law. My quick research shows the following:
Shepherd’s lists the following number of citations:
Brown v. Board of Education: 13,373
Chevron v. NRDC: 23,745
Celotex v. Catrett: 166,027
Anderson v. Liberty Lobby: 168,945
I’m sure there’s some basic criminal law case that’s been cited as much or more.
February 24, 2010, 12:20 pmDavid Bernstein says:
Yes, we do.
February 24, 2010, 1:22 pmyankee says:
When did originalism become an influential method in constitutional interpretation? It’s become very popular in the legal academy, but that has more to do with the (much stronger) arguments made by scholars than with Scalia’s ranting. In the courts, I am not exactly convinced. Even Scalia doesn’t make any effort to apply originalism consistently, he happily ditches it whenever it doesn’t lead to his preferred result.
February 24, 2010, 1:34 pmyankee says:
Actually, yes. O’Connor was appointed to fulfill Reagan’s campaign promise to appoint the first woman to the Supreme Court. Because of a dearth of highly qualified conservative women lawyers, she was appointed despite a relatively modest resume for a Supreme Court Justice—she graduated third in her class at Stanford Law, but then as a county attorney, deputy state attorney general, state senator (and then majority leader). When she was appointed, she was a judge on an intermediate state appellate court. No clerkship, much less a Supreme Court clerkship, no time as a federal judge or even state supreme court judge, no history as a particularly important or influential lawyer
I don’t mean to suggest that O’Connor was unqualified, since her accomplishments were incredible given the level of discrimination she faced (she couldn’t get any private-sector job when she graduated even though she was third in her class at Stanford), but she would never have been considered for the job if she were a man.
February 24, 2010, 1:49 pmBob from Ohio says:
True. But I submit our current cookie cutter template for S/C judges (Ivy, Ivy law, clerk, Beltway or NYC corrider practice, circuit judge) would benefit from someone (man or woman, white, latino or black) with her well rounded resume.
Right now, we are looking only at less than 1% of lawyers for the S/C.
Come to think of it, if Kagan is the nominee, our template is now Ivy, Ivy law, clerk, Beltway to NYC corrider practice, circuit judge, Jewish or Catholic. My math isn’t good enough to calculate how small that pool is.
February 24, 2010, 2:18 pmFantasiaWHT says:
Re: Most cited cases.
If we’re including state courts, surely Miranda v. Arizona would be up there.
Lexis says 51,482
February 24, 2010, 2:57 pmCJColucci says:
If you count editorial headnotes, what about Detroit Lumber?
February 24, 2010, 3:26 pmarch1 says:
Thanks for the pointer to Texas v. Johnson.
To this NAL Stevens’s dissent looks like tortured and significantly flawed ends-based reasoning; further, IMO the chosen end reflects a fundamentally mistaken view of the relative value of a particular symbol vs. what that symbol stands for.
I understand that skimming this one opinion doesn’t entitle me to an opinion on the main thread topic (Stevens’s greatness).
February 24, 2010, 3:54 pmJoseph Slater says:
Great dissents in the bizzarely anti-textual 11th amendment immunity cases (Alden v. Maine and its progeny).
February 24, 2010, 3:54 pmLawrence reader says:
Regarding Matt’s comment that
If we’re judging on reasoning or clarity, and not outcome, Scalia’s Lawrence dissent was not even the worst opinion issued in Lawrence. Kennedy’s muddle never tells us the basic standard of review, or defines the contours of the right at issue, or tells us much other than Kennedy’s policy view. Even fans of the outcome routinely admit that it’s an awful opinion. O’Connor’s concurrence does contortions to avoid admitting that she’s changed her mind since Bowers.
Scalia’s rant may be over the top, and as dissents go, I prefer Thomas’s: the quick nod toward the law’s silliness, with the Stewart line from Griswold, and the basic “not my job” point. But Scalia’s dissent has the virtue of adopting a pretty clear rule: this is left to majoritarian democracy. That rule, love it or hate it, is clearer than Kennedy’s fluff. Scalia’s critique of the majority is spot-on about the selective use of stare decisis, contrasting Casey/Roe and Lawrence/Bowers. Calling out the majority for taking sides in a culture war, or whatever he said, is pretty over the top, but that doesn’t make it any less accurate.
I’m happy to live in a world without sodomy laws, but I’m honest enough to admit that Lawrence is a hack opinion.
February 24, 2010, 4:00 pmMark Field says:
I agree. The “track” has narrowed so much that it’s become a rut. It’s absurd.
February 24, 2010, 4:09 pmHarriet Miers's Law Partner says:
Strike “Justices” and insert “law professors” and the meaning of the statement is unchanged.
February 24, 2010, 5:08 pmarch1 says:
Harriet Miers’s Law Partner says:
Strike “Justices” and insert “law professors” and the meaning of the statement is unchanged.
If you really mean “meaning,” that’s just not true. (But if by “meaning” you in truth meant “truth,” then I get your meaning:-)
February 24, 2010, 5:41 pmDarwin says:
“And what is more, being a miner, as soon as you are too old and tired and sick and stupid to do the job properly, you have to go. Well, the very opposite applies with the judges. So all in all I’d rather have been a judge than a miner. Because I’ve always been after the trappings of great luxury, you see. I really, really have. But all I’ve got hold of are the trappings of great poverty. I’ve got hold of the wrong load of trappings, and a rotten load of trappings they are too, ones I could have very well done without.”
February 24, 2010, 5:48 pm—Peter Cook, Tragically I Was an Only Twin: The Complete Peter Cook
Bored Lawyer says:
How about broadening out the discussion a bit to include all federal judges. I can name a few who, while they did an admirable job 10 or 20 years ago, are now long past it. Now doubt when they are carried off the bench, they will be eulogized as “great” jurists. And maybe for a while maybe they were. But they hung on way too long and became intolerable cranks. (But with alot of power!)
I am all for either mandatory retirement (e.g. at 70 or 75 years) or mandatory limits (e.g. 10 or 15 years of service.)
February 24, 2010, 8:16 pmConstantin says:
I’m way late on this, and it’s not even really on topic, but I must follow up: have you read Dreams From My Father? I suggest in all seriousness that you probably should before opining on the extent to which race and race issues inform Obama’s world view. He wrote it as a grown man, and it’s fully in line with the rest of his personal and professional life, see Wright. This guy changed the very name he went by as a result of an awakening of racial identity. It doesn’t get any more fundamental than that.
I’ve not written about “a majority of Americans.” I wrote “many” and “a lot.” I’m not claiming an isolated cause-and-effect, but take a look at his approval ratings among white Americans, and when they started to change, and I think it’s fair to say the two incidents I mentioned played some role.
None among O’Connor, Thomas, and Sotomayor would be on the Court but for their gender / race. This is explicitly the case with O’Connor, as has been pointed out. You might well add Scalia to the list, too, considering the role his heritage played in his selection.
I could not be less obsessed with race. I’m the guy who wants the law to stop dividing people by their skin color. Perhaps I’m obsessed with challenging those who are obsessed with it. The President is one such person.
February 24, 2010, 9:53 pmIdag says:
“I don’t think I’ve ever been sad when a Supreme Court Justice has retired. Surely hanging on like Stevens for thirty-five years until age ninety is long enough to suit anyone.”
Stevens stayed on in a thankless job working long hours (he’s the only justice to personally review all the cert. petitions) when he could have easily resigned and made several times his current salary doing cushy speaking and consulting gigs. When someone retires due to old age, we generally don’t point out how their lifetime of public service was a detriment to society, and frankly, this strikes me as a classless post from someone who disagrees with Stevens’ views.
(as far as being a “great” justice, as has already been pointed out repeatedly, Stevens wrote Chevron, which is one of the bedrocks of current admin law)
February 24, 2010, 11:40 pmleo marvin says:
Douglas and Marshall stayed too long. Stevens hasn’t. The only reason he should quit is if he wants to. Eventually he’d have to calculate the risk of being replaced by a President Palin or Rubio, but that’s too far off to worry about.
February 25, 2010, 12:45 amEric Rasmusen says:
(1) As somebody pointed out, cites to an opinion indicate neither an intelligent author nor an important point. Chevron is cited a lot because it is procedural. Chevron was written because it is obvious: if courts don’t defer even slightly to regulatory agencies on factfinding, courts will be overwhelmed. It’s like that old opinion saying that there is no Federal common law— an attempt to clear the dockets of stuff that bores federal judges.
(2) What are those other two cases some commentor said were even mroe cited?
(3) Another commentor said De Mortuis Nil Nisi Bonum, in effect— it’s not polite to criticize those who are retiring or dead. I very much disagree, in the case of public figures. Pretty much our only leverage over life-tenure judges is public shame, and like dictators, we should make them squirm thinking of what the future will say about them. Retirement is an especially good occasion for condemnation of evil behavior.
February 25, 2010, 10:15 amJoe says:
let’s also not forget that william douglas served most of his last two years on the court from a hospital bed.
He had his stroke in December 1974 and retired in the Fall of 1975.
February 25, 2010, 12:50 pmJoe says:
There’s a fine line between distinguished long term service as a Justice, and clinging to power well-beyond seemliness, and it would almost certainly be better for the Supreme Court if more Justices emulated Souter and O’Connor, and fewer Rehnquist.
How is Stevens “clinging” to power? His intellectual ability and skill as a justice doesn’t appear to be decreasing of late. O’Connor retired to care primarily to care for her husband. A nod btw to Stewart, who O’Connor replaced, and who retired relatively young. Since CJ John Marshall staid on almost as long, and he was not alone, I’m not sure how “unseemly” Stevens’ term of service is.
Stevens has been around a long time, and has inevitably written some important opinions as a result, but “greatness” is not an adjective that comes to mind when I think of his career.
Stevens was partially great given his role as the liberal lion of the Court in recent years but overall I’m unsure comparably of all the great opinions of someone like Brandeis in comparison. A few greats are cited, but aside from that, why is he “great” in comparison to Stevens? In fact, things like Brandeis’ dissents in the area of free speech and privacy can be balanced with Stevens’ dissents on state sovereignty and privacy (e.g., his Bowers dissent inspired Lawrence).
I’ve never gotten over just how ridiculous his reasoning was in his dissent in Texas v. Johnson
Maybe so, though the ruling was 5-4, states/Congress/President all in effect agreed with it, and so forth. So, I’m not sure how “ridiculous” it is on some level. I assume as well that even “Homer nodded.” Holmes has his Buck v. Bell, etc.
But let’s not confuse longevity with greatness.
Well, Tom Goldstein isn’t. Who is?
February 25, 2010, 1:01 pmwvufan says:
Sure. If you were asked to serve by a president who expected you to serve as long as possible in order to maximize the constitutional decision he made by appointing you.
February 25, 2010, 1:41 pmwvufan says:
Scalia will be remembered for, to some extent, imposing his originalism on the Court (or at least making the other justices consider it); for his 6th amendment opinions; his opinion (as lone dissenter) in the special prosecutor case; several other opinions in which his originalism led him to opinions unpopular with the political inclinations often associated with him; his standing cases; a bunch of other stuff I can’t remember now; and, yes, his writing — which is direct, witty, and very well done.
February 25, 2010, 1:49 pmLTR says:
You have to be seriously blinded by your political bias to claim that Stevens was somehow a more influential, memorable or if you wish greater Justice than Scalia.
Scalia introduced new doctrines of both constitutional and statutory interpretations into the American judicial mainstream. That’s an accomplishment of gigantic proportions since it influenced thousands of young law school graduates, many of them future judges, politicians and other public figures. Stevens just can’t match that since he was not a revolutionary figure but rather a keeper of the flames of sorts, protecting the lines of legal reasoning that were well-established by the time he joined the Court.
And while Stevens is a solid, above average writer, Scalia is on a whole different level in that regard, comparable only to Holmes and Jackson in last 100 or so years. Yes, a lot of them have been dissents, but Stevens had his share of those too, and really only Justices without many dissents are traditional swing voters like Kennedy. And it’s hard to portrait Scalia as some miserable loser when in fact he authored many important majority opinions too, including arguably the most important 2nd Amendment opinion ever.
February 25, 2010, 5:34 pmreadery says:
Justice Stephens doubtless won’t rank among the absolute greatest Justices of all time, and I’ve certainly disagreed with him plenty of times. But nonetheless he has been an important justice in recent decades, cementing the Court’s liberal wing and having substantial influence on the Court’s jurisprudence.
February 25, 2010, 8:48 pmS says:
I think Bernstein misrepresents Goldstein, who said Stevens was a great man, which he undoubtedly is by the conventional way such things are decided. Whether his jurisprudence makes him great will take several decades, at least, to determine.
February 27, 2010, 10:49 am