“Success” on the Supreme Court: Do We Know It When We See It?
In a prior post, I made a simple, logical argument for why judicial experience, particularly U.S. Courts of Appeals experience, is an important prerequisite for being a Supreme Court justice. My argument, which I clarified further in a response, is that out of all of the jobs out there, being a U.S. Court of Appeals judge is the most similar to being a Supreme Court justice. The day-to-day tasks bear many similarities, and Courts of Appeals judges process and decide the same types of legal issues that Supreme Court justices decide. In short, being a Court of Appeals judge best prepares one for being a Supreme Court justice because of the similarity of tasks and the strong foundation that exists for understanding, processing, and deciding a wide array of legal questions in the context of a variety of case facts. You get that foundation through practice. Other jobs may give one practice for the job, but clearly, being a federal circuit court judge exposes one to a more diverse set of situations than, say, a private or government lawyer, a law professor, a law school dean, a politician, a White House Counsel, and so forth.
Several people responded with insightful comments. CoOp contributor Lawrence Cunningham noted that one should “consider that at least 40 of the 110 or so SCOTUS Justices were not previously judges and some of them were quite successful on the Court.” He included many of the usual suspects, including John Marshall, Earl Warren, Joseph Story, Louis Brandeis, and Hugo Black.
CoOp contributor Dave Hoffman stated: “So it is an empirical question – isn’t it? And I don’t think there is much evidence at all that previous judicial experience makes appellate court judges more productive, more cited, etc.”
And CoOp reader Anthony Encarnacao responded with: “[The] bottom line here [is that] experience is not the key indicator of success. Prior success in all aspects of one’s career is usually a better indicator of success.”
These three lines of thought got me thinking about how we define “success” in the context of Supreme Court justices.
When we talk about the “great” justices, we often use the “I know it when I see it” standard, to borrow Justice Stewart’s famous quip applied to obscenity cases. I would argue that assessing the extent to which a Supreme Court justice is successful is a fundamentally subjective enterprise. Moreover, there are multiple dimensions of success to consider that are not necessarily correlated. I thought of the following dimensions underlying success:
1. Legal Policy Legacy. To what extent do justices leave behind a body of enduring legal precedents and policies? Chief Justice Marshall asserted the power of judicial review, which arguably makes him among the most influential justices over the long haul. The Supreme Court would have the final word — save for a constitutional amendment — on the meaning of the Constitution. Marshall’s decisions also established the federal government as an authority over the states. Chief Justice Warren and colleagues certainly left behind a legacy that revolutionized how we think of civil liberties, civil rights, and criminal rights in the legal context. This legacy is celebrated by liberals but heavily criticized by many conservatives.
2. Consistency. To what extent do justices vote consistently on legal issues, or “stick to their principles” (principles related to, e.g., ideology or judicial philosophy). Justice Scalia, for instance, is certainly a hero to the right. Conservatives laud his embrace of orginalism and contend that he is simply doing what the law requires. Liberals think he needs to get with the times and embrace a more dynamic view of the Constitution that can speak to contemporary problems. Justices Stevens and Ginsburg are lauded by the left as progressive protectors of civil rights and liberties, while conservatives would call these two justices (and others) “liberal activists” who go beyond the text of the Constitution to render desired policy outcomes. Justice Black was praised for his (purported) absolutist, principled view of the First Amendment’s free speech guarantee — “Congress shall make no law” means just that!
3. Objectivity in Legal Reasoning. To what extent do justices objectively apply legal doctrines to the facts of a given case? This dimension is extremely difficult, if not impossible, to quantify. To use Chief Justice Roberts’s analogy, to what extent is the justice like an umpire simply calling balls and strikes as s/he sees them?
4. Collegial Influence, Coalition Building, Forging Consensus. To what extent are justices influential in persuading their colleagues to vote certain ways? Justice Brennan is usually mentioned as an influential justice who sought to build coalitions and was at times successful in persuading his colleagues. Chief Justice Warren famously sought, and attained, consensus on perhaps the most important Supreme Court decision, Brown v. Board of Education. Chief Justice Roberts sought to forge more consensus on the Court. He appeared successful at first, but the rate of 9-0 decisions dropped after his first term. Other justices have not been as successful at collegial influence and have alienated certain colleagues. Justices Frankfurter, Douglas, and Scalia come to mind. Perhaps influence and persuasion is/was not a primary goal of theirs, particularly Scalia.
5. Writing “Great” Opinions. What are the most influential, consequential Supreme Court opinions? Which justices have written the most influential opinions? One can begin to quantify this dimension by looking at citation patterns, which is related to what Dave Hoffman suggests. Political scientists James Fowler, Timothy Johnson, James Spriggs, Sangic Jeon, and Paul Wahlbeck published a compelling study measuring the legal importance of Supreme Court opinions using network analysis.
6. Steering a Middle Course. To what extent do justices engage in a moderate, compromising course of action on the Court? Justice O’Connor engaged in this practice in a legendary manner. The ultimate swing justice, O’Connor carved out legal compromises on hot-button issues like abortion (upholding the right to an abortion, but downgrading the legal standard to “undue burden”) and affirmative action (applying Bakke in the Michigan cases). Jeffrey Toobin, in The Nine, paints O’Connor as essentially keeping her finger on the pulse of the public, never deviating far from the mainstream. O’Connor’s legal rationales were often criticized by her colleagues, especially Scalia, who could be especially biting toward and critical of O’Connor, but also Rehnquist, who stated, for instance, that O’Connor’s “undue burden” standard was one that was “not built to last.” Other moderate, swing justices come to mind, such as Justices Powell (one of O’Connor’s favorite colleagues), White, and Kennedy.
7. Leadership. To what extent do justices exhibit extra-legal forms of influence on the Court? Chief Justice Taft aggressively urged passage of the Judiciary Act of 1925 (the Judges Bill), which greatly expanded the Court’s discretionary jurisdiction, one of the defining features of the modern-day Court. Taft also successfully pushed for a separate building for the Supreme Court — the beautiful marble palace that is still in use today, of course. Chief Justice Rehnquist was praised for showing more structured leadership in conference sessions, rectifying the often scattered sessions presided over by Chief Justice Burger that produced frustration among many justices.
This list is not meant to be exhaustive, though it contains many facets of success that we often implicitly rely on when assessing success on the bench. The bottom line is this: While we seek successful justices on the Court, the term success in the judicial context is subjective and multidimensional. And these dimensions are not necessarily correlated; being successful on one facet does not guarantee success on another. Defining success, then, depends on who is assessing success and what dimension(s) they find most important.
Thus, I go back to my earlier post on judicial experience, summarized in the first paragraph of this post. Instead of trying to forecast who might be the most “successful,” which is subjective and elusive, what we should look for in a prospective justice is someone who is sufficiently prepared to decide the numerous array of legal questions that will face him or her over the years on the Supreme Court.