Decision: How the Supreme Court Decides Cases

By Bernard Schwartz | Go to book overview

11
Apotheosis of Mediocrity?

Just before his death in 1971, Dean Acheson wrote that "our age might be called the apotheosis of mediocrity." The history of the Supreme Court affirms that this is true of our highest tribunal as well. Not since pre-Civil War days has the caliber of the Justices been so ordinary. Yet even the Taney Court had two outstanding Justices: The Chief Justice himself and his archrival, Justice Curtis. As the recently released papers of Justice Thurgood Marshall show, the Justices today are meticulous in their devotion to their work. As a commentator in the American Bar Association Journal put it, "What can be found [in the papers] is thoughtful analysis, concern, and . . . deference between justices on opposite sides of an issue." Yet one is reminded of what Justice Holmes once wrote about a colleague: "he was a very honest hard working Judge [but] He had not wings and was not a thunderbolt." Even our inferior Supreme Courts have had their Justices who soared and thundered.

Alas, that is not true today. Perhaps it would be extreme to say, with John Randolph of Roanoke, "Never were abilities so much below mediocrity so well rewarded; no, not when Caligula's horse was made Consul." The most remarkable thing about the Justices today is that, in James Bryce's phrase, "being so commonplace they should have climbed so high."

Not only has the caliber of the Justices declined; it is most unlikely that, with the recent politicization of the appointing and confirmation process, a nominee with the potential for greatness could be approved. The prime attribute of the ideal Supreme Court nominee now seems to be the absence of a "paper trail": strong views publicly expressed are more disqualifications than indices of the ability needed to serve on the highest bench. Greatness in the Court, as in other areas of public life, seems out of place in an age in which the world of law, like that of physics, is perceived only as the relativity of one value compared with

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Decision: How the Supreme Court Decides Cases
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents xiii
  • Introduction 3
  • Cases Covered 9
  • 1 - Rehnquist and Roe 12
  • 2 - Webster and the Decision Process 36
  • 3 - The Chief Leads the Court 65
  • Super Chief in Action 88
  • 5 - Burger Rebuffed 120
  • 6 - The Court Leads the Chief 135
  • 7 - Individual Justices Lead the Court 155
  • 8 - Vote Switches 178
  • 9 - More Switches, Near Misses, and Abortion 207
  • 10 - Civil Rights and Other Rehnquist Court Switches 237
  • 11 - Apotheosis of Mediocrity? 256
  • Table of Cases 263
  • Index 265
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