Vol. 14 No. 2 (February 2004)

LEADERS OF THE PACK:  POLLS & CASE STUDIES OF GREAT SUPREME COURT JUSTICES, by William D. Pederson and Norman W. Provizer (eds.).  New York:  Peter Lang Publishing, 2003.  287pp.  $32.95. Paper   ISBN:  0-8204-6306-X.

Reviewed by Joyce A. Baugh, Department of Political Science, Central Michigan University.  joyce.baugh@cmich.edu

LEADERS OF THE PACK is a revised version of a 1993 book, GREAT JUSTICES OF THE U.S. SUPREME COURT.  The 1993 book grew out of a national conference held in the fall of 1990, which focused on the issue of greatness on the U.S. Supreme Court.  The organization, format, and content of LEADERS OF THE PACK are similar to the earlier work, but there are a number of substantive changes.

Chapter 1, "Selecting and Ranking Great Justices:  Poll Results," is a slightly revised version of Robert Bradley's opening chapter from GREAT JUSTICES.  Bradley first notes the difficulty of compiling reliable lists of "the greats" because of a lack of consensus on objective standards for comparisons among the justices.  He then reports on the rankings of justices from earlier studies, focusing particularly on a survey of judicial scholars conducted in the early 1970s by Blaustein and Mersky.  Using an approach similar to Blaustein and Mersky's, Bradley conducted his own survey of great justices.  He had two objectives:  a) "to devise a list of great justices that would reflect a rank order according to some criteria of greatness and not be just another chronological roster" (p.7), and b) to establish a method for future scholars to replicate.

Bradley surveyed four sets of respondents-judicial scholars, state judges in Illinois, local attorneys, and undergraduate and graduate students in law-related courses.   The response rate varied significantly across the groups.  He received valid, complete surveys from 89 of 117 (76%) students; from 103 of 257 (40%) scholars; from 14 of 121 (12%) judges; and from 27 of 115 (23%) attorneys.

The respondents were asked to identify and rank-order a maximum of ten great justices and then to discuss the criteria they used for selecting them.  After using a point system to rank the justices, he compiled tables reflecting the cumulative number of points in each respondent group and for the four groups combined.  Finally, he presented the criteria respondents used in determining their lists of great justices.  Many of the criteria listed were the result of combining similar comments into relevant categories.

In analyzing the results, Bradley found great similarities among scholars and judges in their rankings, with nine justices making both lists - John Marshall, Oliver Wendell Holmes, Earl Warren, Louis Brandeis, William Brennan, Hugo Black, William Douglas, Felix Frankfurter, and Benjamin Cardozo.  There were differences, however, in the positions on the lists.  While both groups ranked Marshall and Holmes as first and second, Cardozo was ranked third by the judges but only tenth by the scholars.  Similarly, Warren and Brennan were in third and fifth place according to the scholars, but ranked fifth and eighth on the judges' list.  The responses from the attorneys and students were strikingly different from those of the scholars and judges.  For the attorneys, there was a tie between Marshall and Holmes for first place, four justices were included who did not appear on the lists of either the scholars or judges (Roger Taney, Joseph Story, John Harlan II, and William Rehnquist), and Brennan did not make it on the list at all.  The student respondents did place Marshall in the number one spot, but with the exception of Oliver Wendell Holmes, their choices for the "greats" were either current justices (Rehnquist and Sandra Day O'Connor) or those who retired after 1968 (Warren Burger, Earl Warren, William Brennan, Harry Blackmun, Thurgood Marshall, and Hugo Black).  As Bradley notes, the students' responses were more likely based on name recognition than any measure of greatness.

In looking at selection criteria, Bradley reports that judges, attorneys, and students all cited writing ability as the first criterion, while scholars identified leadership and impact on the law as most important.  In addition, intellectual ability was mentioned by all four groups; while personal attributes and protection of individual rights were significant to attorneys and students but not at all to judges and scholars.

Given these findings, it appears that Bradley was only partially successful in achieving his objectives.  As he concludes, "greatness on the Supreme Court is subjective," and "there are certain commonalities among the different lists of great justices as well as the criteria cited in making the determination of the 'greats.' . . . Apparently, the identity of the group evaluating the justices influences the outcome of the 'greats' list.  Much the same can be said for the most frequently used criteria applied to justices to determine if they are 'great'" (pp.14-15).  In addition, the small number of respondents in this survey makes it impossible to generalize from the results.  Bradley did succeed in his second objective.  Interest among scholars in developing lists of "great justices" is likely to continue, and Bradley's study provides a framework for asking these questions to a larger respondent group.

Following Bradley's essay, chapters two through seventeen are case studies of sixteen justices arranged in chronological order:  John Marshall, Joseph Story, Roger Taney, John Marshall Harlan the Elder, Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Hugo Black, Felix Frankfurter, William Douglas, Charles Evans Hughes, Harlan Stone, Earl Warren, William Brennan, William Rehnquist, and Sandra Day O'Connor.  Unfortunately, the editors do not tell us why this particular group of justices was selected.  While most of them have appeared on at least one list in previous rankings of great justices, it would be helpful to know more specifically the reasons for including them here.  For example, William Howard Taft and Lewis Powell were included in GREAT JUSTICES, but they were excluded from this volume.  Conversely, Frankfurter and Stone were not included in GREAT JUSTICES, but they are examined in this book.  Rehnquist and O'Connor are each the subject of separate chapters in LEADERS OF THE PACK; while each was discussed briefly in a chapter on the Reagan appointees in the first book. Twelve of the essays are new to LEADERS OF THE PACK, with all but the one on Harlan written by a different author. The four chapters on Marshall, Black, Warren, and Brennan have been slightly revised from those that appeared in GREAT JUSTICES.

The case studies vary in length and depth, ranging from less than ten pages (Brandeis) to more than twenty-five (Cardozo).  Several of the essays focus on the importance of the justices' socioeconomic backgrounds and pre-Court careers in developing their jurisprudence and decision making on the Court, especially, Harlan, Holmes, Black, Douglas, and O'Connor.  For example, Linda Przybyszewski provides important insights into Justice Harlan's transformation from being opposed to emancipation and citizenship for African-Americans to his famous declaration in PLESSY v. FERGUSON that the "Constitution is color-blind."  Similarly, Neil Irwin maintains that Justice O'Connor's "greatness arises from an unflinching work ethic, dedication, and perceptive understanding of the roles she has taken - rancher's daughter, student, lawyer, wife, mother, civic leader, legislator, and judge" (p.247).  The essays on Justices Story and Brennan emphasize the roles each played in helping their chief justices to be effective leaders.  Danny Adkison argues that Story's early federalism opinions were critical to the development of national supremacy and were as important as Marshall's MARBURY v. MADISON decision.  In addition, Adkison says that Story often provided Marshall with the "legal precedents and legal rigor" that the chief justice used to interpret the Contract Clause to guarantee the protection of property rights in the nineteenth century.  Rodney Grunes writes similarly of Brennan, describing him as "the intellectual leader of a liberal activist majority" who "became the chief spokesperson for the values we associate with the Warren Court: freedom of expression, religious liberty, procedural fairness, and equality" (pp.218-219).

The final chapter in LEADERS OF THE PACK is a provocative essay by David Schultz titled, "Why No More Giants on the Supreme Court: The Personalities and the Times."  Schultz asserts that two characteristics make a justice great:  1) "creat[ing] a new paradigm for him or herself, the Court, or the law," and 2) the ability to "persuade others, on the Court, in government, and in society to adopt a particular perspective on the law" (p.264).  He cites John Marshall, Joseph Story, Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Hugo Black, Earl Warren, and William Brennan, as examples of justices who succeeded in this regard.

Schultz then evaluates the current justices against these two characteristics and concludes that none of them have the potential for greatness.  He suggests three primary reasons for this.  First, they are serving "at a time when there is a diminished expectation of stated desire for them and the Court to engage in major jurisprudence or legal thinking" (p.270).  Second, the post-Bork confirmation process has contributed to the selection of justices who are "confirmable," not because of their intellectual ability.  Schultz writes, "This is not to imply that these justices are idiots, but instead to suggest that an important reason for their being on the Court is that they were deemed acceptable and that they would be worthy delegates for the president who nominated them" (p.271).  The third factor is that legal education in the post-World War II era is more technically focused than oriented to the liberal arts.  Schultz sums up his pessimism about the future in the first paragraph of his conclusion:  "There are no giants on the Supreme Court today and the prospect is that for the foreseeable future that will remain true.  Many structural and ideological forces are at work that make it difficult for a new giant to emerge, or for any of the current justices to rise to that level" (p.273).

Although individual chapters are interesting and generally well-written, the book would have benefited from an introduction that ties them together and provides a larger perspective.  There is a brief prelude that explains the book's title and briefly discusses criteria for determining great justices, but this reader was left wanting more discussion about the organization and overall purpose of the text, especially why these particular justices were chosen for inclusion.  In addition, problems in copyediting detract from the quality of this book, including missing words, repeated words and phrases, transposed phrases, and missing endnotes, suggesting that part of a chapter's text also might be missing.  These mistakes are usually minor, but in a few instances, they may cause confusion for the reader.  In Chapter One, for example, the text in one of the tables does not match the author's discussion.  The essay on Justice Holmes points to his classic statement from THE COMMON LAW:  "The life of the law has not been logic:  it has been experience."  Unfortunately, the sentence reads "he argued emphatically that logic, not experience was the life of the law" (p.82). 

While experienced scholars may not find much new information in LEADERS OF THE PACK, it nonetheless provides a wealth of supplemental material for courses in judicial politics and constitutional law and history.  The first and last chapters establish a framework for engaging students in discussions about what makes for greatness and leadership on the Supreme Court and why it is important to ask this question.  Finally, the case studies provide students the opportunity for assessment within the context of the lives and work of specific justices.

REFERENCES:

Blaustein, Albert P., and Roy M. Mersky.  1972. "Rating Supreme Court Justices." 58 AMERICAN BAR ASSOCIATION JOURNAL 1183-1189.

Holmes, Oliver Wendell.  1881. THE COMMON LAW.  Boston: Little, Brown.

Pederson, William D., and Norman W. Provizer (eds.).  1993. GREAT JUSTICES OF THE U.S. SUPREME COURT:  RATINGS AND CASE STUDIES.  New York: Peter Lang.

CASE REFERENCES:

MARBURY v. MADISON, 1 Cranch 137 (U.S. 1803)

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

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Copyright 2004 by the author, Joyce A. Baugh.