Influence on the Supreme Court

I just finished the new biography of Justice Brennan, and I was very impressed.  My thought was that there was no way a balanced account could be written about such a polarizing figure, but the authors pulled it off. Now the book does suffer from the weakness of the judicial biography genre, which is that judges generally lead dull lives, but it’s a great resource on the Court’s internal politics during his tenure.

Brennan is widely acclaimed as one of the most “influential” Justices.  What do people mean when they say that?  I think that there are several types of influential Justices depending on your time horizon.

1.  The Median Justice.  In any given period, somebody is the swing vote on the Court.  Right now that is Justice Kennedy. The swing Justice is often described as influential, but that title disappears once the median position shifts.  If you look at past examples, nobody much cares about the opinions of this type of Justice in the long run, with the possible exception of Justice Powell.

2.  The Coalition Builder.  This is the one who is the best at convincing the median Justice.  Justice Brennan fits this model. Filling this role requires a willingness to sacrifice logical consistency to accommodate the views of colleagues, and this can weaken the persuasiveness of the opinion for subsequent cases.  That may not matter, though, if the holding is the critical aspect of the decision.  Law professors may criticize aspects of Baker v. Carr or Plyler v. Doe, but those holdings were very important and are now deeply woven into American life.

3.  The Great Writer.  To a significant extent, judicial influence depends on how quotable the opinions are.  An old line from the Second Circuit about Learned Hand and Augustus Hand said “Quote Learned, but go with Gus.”  In other words, Augustus Hand was a better judge, but Learned was the more influential one.  Justice Robert H. Jackson is one example of this type.

4.  The Visionary.  Some Justices are important because they advance an overarching view of the Constitution that is persuasive over time (whether due to their efforts or not).  These folks often start out in dissent and are not interested in persuading their colleagues.  They are instead interested in convincing law students and the wider public.  They are also not so keen on stare decisis or avoiding unnecessary questions, since they want to put forward their theory as often as they can and brush aside contrary authorities.  John Marshall Harlan the elder is an example of this category.

No Justice fits all of these categories.  Indeed,  John Marshall may be the only one who fits more than one, though you could also put Holmes, Brandeis, and Scalia in that set.

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3 Responses

  1. Dan Cole says:

    Gerard:

    Into which categories does Scalia fit? The one that seems most obvious is 4, based on Scalia’s overarching view of the constitution. But I’m not convinced that he has such an overarching view. No matter how many times he says that the Constitution is a “dead” instrument, his originalism is, at best, inconsistent. His opinions are far more instrumental and outcome-oriented than he would have us believe.

    So, if he is not a great visionary, where does he fit? He’s obviously never been the median justice. Neither is he a coalition-builder – he’s as likely to excoriate conservative colleagues as liberal ones, if he disagrees with them on even a minor issue.

    Finally, some might argue that he’s a great writer. He can be pithy to be sure, but he’s certainly not in the league of a Holmes, a Learned Hand, or a Cardozo, when it comes to writing logically sound, forceful, elegant, and concise opinions. Like most modern jurists, he seems unable to say what he has to say, in convincing fashion, in 20 pages or less; they love the sound of their own voices too much.

  2. TJ says:

    Gerard,

    One quibble. You are right that few people care in the long run whether a particular opinion was written by the median justice or somebody else. But you need to remember that without the median justice there would be no opinion in the first place. In other words, the median justice perpetuates his influence by the force of stare decisis, more than just being the flavor of the day. The coalition-builder has influence because he can persuade the median justice. Surely no justice is more persuasive to himself than himself.

  3. Vicky Woeste says:

    Ruth Marcus’s review puts Brennan in the coalition-builder category, but apparently Brennan was a bit touchy about his image there: http://www.washingtonpost.com/wp-dyn/content/article/2010/10/05/AR2010100503831_2.html?nav=hcmoduletmv