What, Was William H. Taft Chopped Liver?:

Jeff Rosen: "over the course of history, former politicians have made not only the best chief justices--think of John Marshall, Charles Evans Hughes, and Earl Warren."

John (mail):
Earl Warren was significant, yes. But "best"?

Imagine a cartoon: 1st frame--9 Justices sitting around and one says, "you know, maybe we should just tell them if you want to change the Constitution go out and amend it." 2d frame--Justices looking at each other. 3d frame--Justices laughing hysterically, holding sides, bending over, etc. And thanks to Earl Warren! One of the best!
2.27.2008 9:15pm
Hawaii Mike (mail):
And let us not forget Roger Taney!!!!! A great politician and as the third Secretary of the Treasury for your friend and mine,Andy Jackson,removed,the federal deposits from the Bank of the United States, an act his predecessors considered illegal. Actually, he was a pretty fair Chief Justice until he decided that he could resolve all the slavery issues in the Dred Scott decision.
2.27.2008 9:30pm
DrGrishka (mail):
What really grates me is this notion that Hillary Clinton is this brilliant lawyer who is qualified to sit on the Supreme Court. Yes, she is a smart woman, but where is any evidence that she has seriously thought about any constitutional issues facing the Court? Is there a record of litigation, brief writing, law review publications, or anything else? No. In Rose Law Firm, she was mostly a rainmaker, not a trial lawyer.

Same with Obama. Despite claims that he is a Constitutional Law scholar, there is no evidence whatever of any "scholarship." Yes, he lectured. But that makes him a lecturer, not a scholar.

And finally, as to Earl Warren. Some of his opinions were simply embarassing. And not even for their result, but for shoddy reasoning. He was able to get away with it because he had 5 votes to do anything he wanted. Brown v. Board unquestionably had a right outcome, but it is an embarassment to read. It did not even bother to state that Plessy was being overruled. Instead, it talked about dolls and feelings of inferiority. (Apparently then, so long as no feelings of inferiority are present discrimination is A-OK). So, to the extent that Professor Rosen argues that a politician of Earl Warren's type would be an intellectual match for John Roberts or Antonin Scalia or Stephen Breyer or Sam Alito, he is woefully mistaken.
2.27.2008 9:37pm
frankcross (mail):
Couldn't Clarence Thomas qualify as at least something of a former politician?
2.27.2008 9:45pm
Cornellian (mail):
Hilary is about as qualified for a position on the Supreme Court as Harriet Meirs. Barack Obama would be somewhat more qualified, but still nowhere near having the credentials one would expect in a nominee.
2.27.2008 9:54pm
Displaced Midwesterner (mail):
Based on past performance the politican turned justice idea is obviously pretty hit or miss really. But conceptutally, it seems like it would depend on how you view the roles of the branches. During the Founding, there was a lot more traction behind the idea that each branch had its say in the meaning and application of the Constitution. With that kind of framework, it actually makes more sense to have the Court be more lawyerly, to make the perspectives of the branches more varied (it didn't really work out that way in the beginning, thanks to the fact that the founding generation had a very modern sense of career flexibility). Nowadays, though, the Court is definitely viewed as the ultimate arbiter of constitutional law and the other branches have only a limited voice (aside from certain areas like foreign relations, etc.). Given that reality, and given that the Constitution is a constitution and not just any old statute, it seems to make sense to have more people with political experience on the Court and the federal bench in general. Although, of course, it is still a judiciary, so they should have some idea of what law is and how to write a coherent opinion. But lawyer-politicians are not really in that short supply...although, admittedly, well-qualified ones might be.
2.27.2008 10:26pm
Redlands (mail):
Ah, yes, Earl Warren, advocate and coconspirator of Japanese "relocation" as California Attorney General, 1942. I know there is every kind of explanation, but I just can't get over it or anyone involved in it.
2.28.2008 12:06am
Asher Steinberg (mail):
DrGriksha, in fairness to Warren, he was trying to explain why separate but equal wasn't equal, and his answer was that, however perfectly equal the schools may be, the mere presence of separate schools gives rise to feelings of stigma and inferiority. For there to be a violation of the Equal Protection clause, there usually has to be some sort of inequity or harm. For instance, it probably wouldn't be unconstitutional if a town decided to go to same sex schools for educational reasons, so long as the schools were equal and neither gender felt that they were being deemed inferior. Racial segregation, because there never is any good reason, naturally implies racist intent, and that racist intent, of course, translates into feelings of stigma and there's your inequity/injury. But I don't know that the Court has ever said that discriminatory intent that fails to create some kind of disparate impact violates equal protection. Suppose I'm a racist police commissioner (this fact pattern is the opposite of Washington v. Davis) and I say, I don't want blacks on my police force, so I'll pick a test that I think will fail black applicants more than whites. And I pick the test and it doesn't work, whites and blacks pass at identical rates, and there's no reason to think that, given another test, blacks would pass at even higher rates. Under my test more blacks make the grade than before. Is that unconstitutional? It seems to me that I've tried to violate the Constitution, clearly, but I've failed. So Warren, I think, had to show some kind of inequity as well as show that segregation was instituted for racist reasons, and that's why he spends so much time on feelings of inferiority. Now of course it's not a good opinion, but I see why he went in that direction.
2.28.2008 12:13am
Elliot Reed (mail):
I don't know why Warren put the stuff about feelings about inferiority, but I remember one potential explanation being that he was trying to come up with something that would play better in the South than the real reason, which was more like "you Southerners are fucking racists who will ignore any attempt we make to require that all those separate public facilities actually be equal".
2.28.2008 12:32am
Tony Tutins (mail):
As Senior Lecturer at U of C, Obama taught:
* Constitutional Law III: Equal Protection and Substantive Due Process
* Current Issues in Racism &the Law
* Voting Rights &the Democratic Process
2.28.2008 12:36am
The Cabbage (mail):
He taught three classes? What did he do with his spare time?
2.28.2008 1:19am
William Howard Taft was a fine, upstanding, solid conservative. However, his Court's free speech rulings have given way to the logic of O.W. Holmes' dissents. And his Court's economic substantive due process decisions and commerce clause jurisprudence were, to everyone's relief, overturned a decade later and replaced eventually with a different sort of judicial activism (presaged by Carolene Products Footnote 4).

Probably his most enduring opinion today is the one where he found that payment of income taxes as part of compensation constituted "gross income from whatever source derived." Important enough, but not judicially sexy.
2.28.2008 3:16am
U.Va. 3L:
So, to the extent that Professor Rosen argues that a politician of Earl Warren's type would be an intellectual match for John Roberts or Antonin Scalia or Stephen Breyer or Sam Alito, he is woefully mistaken.

He would be, but he's not arguing that. He's arguing that Warren is among the "best" CJs, which is quite a different beast. (It's also worth noting that he doesn't say exactly how he's defining "best"; Rosen might mean "best at building consensus in important cases," which means Warren is up there, for example.
2.28.2008 4:14am
Prof. Rosen says a lot of things about the Supreme Court in pop culture magazines that aren't worth taking seriously. This is another of those things. I find it hard to believe that he considers Obama or Clinton to be strong contenders for the Supreme Court, and I wonder if he only said that to sound clever.

My guess is that the particular sentence in this post started off with only Marshall and Warren, and needed a third for style.
2.28.2008 8:16am
Don Meaker (mail):
"I find it hard to believe that he considers Obama or Clinton to be strong contenders for the Supreme Court"

Besides, Hillary will need a consolation prize.
2.28.2008 9:10am
Endnote (mail) (www):
From Butch Cassidy and the Sundance Kid:

Butch: Who's the best lawman?
Sundance: You mean toughest or easiest to bribe?
2.28.2008 9:14am
Taft fan:
Taft's best legacy is not his opinions (though there are some overlooked gems), but his achievements in getting the Court its own building and in restructuring the federal court system to what is still largely today's model. The building is not just beautiful and practical, but was needed to symbolize an independent branch, as opposed to being in Congress's basement. Maybe the Court has taken that a bit too far, but it was still a needed step.

And Taft was a darn good guy, too. Never wanted to be Prez, but did what he thought was his duty, was crushed when TR turned on him, but suffered it with dignity.

An under-appreciated guy all-around. (And he was quite all-around. :-) )
2.28.2008 11:32am
DJ (mail):
"He taught three classes? What did he do with his spare time?"

He was a full-time Illinois state representative.
2.28.2008 1:31pm
Dave Hardy (mail) (www):
Marshall? The original political hack, who dropped out of law school, sat on a case in which he had an outrageous conflict of interest, etc.?

In Marbury v. Madison, he was ruling upon a decision he himself issued, as Sec. of State. His brother was a witness, testifying that Marshall had signed the warrant before midnight on the last day of Adams' administration, which was a disputed fact.
2.28.2008 4:02pm
DJ: Barack Obama never served in the Illinois House of Representatives. He was elected to the Illinois state Senate in 1996, serving January 8, 1997, to November 4, 2004.
2.28.2008 4:03pm
DJ (mail):
eyesay: Whatever. But thanks for clearing that up.

The point stands: He was a part-time lecturer because he otherwise had a full-time job. In Springfield.

For those who care, the word on the street is that the Law School could never convince him to accept a tenure-track faculty position because he was more interested in politics than in the academy. I never heard that when I was a student at the University, but it could be true. He certainly has the brain to be a professor. But probably not the disposition. That's why the likelihood of him accepting a seat on the Supreme Court is about as high as Bill Clinton becoming a judge. These guys are doers. The court is a crypt.
2.28.2008 6:59pm
Mike Gordon (mail):
Don't forget Charles Evans Hughes, former Governor of New York and Republican Presidential candidate in 1916. Didn't he say something to the effect that Wilson was not telling the truth about staying out of WWI. Shouldn't Chief Justice Hughes be mentioned as well?
2.28.2008 9:39pm
markm (mail):
Elliot: IMO, the court signed on to a legal fiction in Plessy vs. Ferguson, when they accepted "separate but equal" even though anyone that had ever taken a walk through a southern town knew that "equal" wasn't going to happen. The Warren court accepted a load of sociological hooey to reverse that - since, unlike some judges since, they knew it was impossible for the courts to take control of the school system and ensure any equality happened except the equality of total system-wide failure.
2.29.2008 6:23pm
John D (mail):
Wasn't it also the Warren Court that issued the "One Man One Vote" ruling that changed the entire structure of political representation?

It would have outlawed the U.S. Senate if its structure had not been laid out in the Constitution.

This removed the balance that their was between the high population areas and rural which had provided some restraints on populist demagogues.

I'm not sure that I would consider that a positive achievement.
3.2.2008 2:02am