2008 Symposium on Neglected Justices
Ely, James W., Brandon, Mark E., Vanderbilt Law Review
THE RANKINGS GAME
The world that law schools inhabit is obsessed with rankings. The most conspicuous example of this is the annual survey of law schools by U.S. News and World Report. Although university administrators ritually decry such rankings, their condemnations ring hollow. After all, law schools regularly rank applicants and students, as well as faculty performance. And it is common for the deans of schools that "move up" in the rankings to trumpet their success, if not to the world, then to their own faculties, alumni, students, and prospective students.1 Thus, the schools themselves can hardly claim an exemption from this hierarchical mentality.
In a similar vein, scholars have long sought to identify "great" Supreme Court decisions.2 The criteria for selection in such lists are contestable. Should cases be chosen for their immediate impact? What about decisions later overturned by the Supreme Court itself or by constitutional amendment? Should cases be designated "great" because of their enduring influence? Should cases be selected for their outcome or for skillful legal reasoning? How, for example, to rank Lochner v. New York (1905), 3 discussed infra in the Article on Rufus W. Peckham? The doctrine of liberty of contract endorsed in that decision was long ago abandoned. Yet Lochner remains at the heart of an ongoing debate about the role of the judiciary in American government and about the place of property and contract in the hierarchy of constitutional values. Even today, Lochner is the subject of a vast scholarly literature, which underscores the extent to which the decision's legacy hovers over modern constitutional jurisprudence.4 The Court's decision in Lochner was clearly significant. Having been effectively overruled, however, should it be on a list of "great" decisions? And what of judicial opinions that, at the time at least, did not claim a majority on the Court? What of dissenting opinions? One thinks immediately, in this regard, of Justice John Marshall Harlan's dissent in Plessy v. Ferguson (1896)5 and Justice George Sutherland's dissent in Home Building & Loan Ass'n v. Blaisdell (1934). 6 But there are others, such as Justice Harlan F. Stone's dissent in Minersville School District v. Gobitis (1940), 7 Justice Felix Frankfurter's related but antithetical dissent in West Virginia State Board of Education v. Barnette (1943), 8 Justice Harry A. Blackmun's and Justice John Paul Stevens's dissents in Bowers v. Hardwick (1986), 9 and Justice Antonin Scalia's related but antithetical dissent in Lawrence v. Texas (2003). 10 Teachers and scholars of law have long maintained their lists of worthy (even canonical) decisions and opinions, regardless of their claim to a majority of votes on the Court.
Given the legal academy's penchant for ranking, it is hardly a surprise that legal scholars have turned their attention to crafting lists of the greatest Justices of the Supreme Court.11 As with ratings of decisions, however, the difficulties of articulating and applying standards plague scholarly efforts to rank Justices. Are there defensible criteria by which to assess judicial performance? To the extent that personal perspective colors evaluation, how might one screen for political and ideological bias on the part of the evaluators? Or is political favoritism inevitable?12 Another concern is whether a "presentisi" bias skews ratings in a way that treats recent jurists more kindly than those of other eras?13 Conversely, does reverence for certain eras of the past elevate the status of some Justices? Additional problems abound. The challenges facing the Justices in the preMarshall Court of the 1790s were, in many respects, radically different from those confronting the Supreme Court in the twenty-first century. The nature of the Court's docket has similarly changed. Throughout most of the nineteenth century, moreover, Supreme Court Justices were required to perform circuit court duties, an often onerous task that drained time and energy. …