Vol. 4, No. 4 (April, 1994), pp. 56-57.
GREAT JUSTICES OF THE U.S. SUPREME COURT: RATING & CASE
STUDIES by William D. Pederson and Norman W. Provizer (eds.). New
York: Peter Lang, 1993. 388 pp. Paper $32.95.
Reviewed by Jerry Goldman, Northwestern University
This collection of eighteen loosely joined essays and a selected
bibliography is the product of a 1990 national conference on the
issue of greatness on the U.S. Supreme Court. The conference
setting was Louisiana State University in Shreveport.
Robert C. Bradley s opening essay ( Who Are the Great Justices
and What Criteria Did They Meet? ) holds out the promise of
advancement over other such lists dating back more than 60 years.
Bradley had two objectives. First, he sought to rank entries
according to a set of criteria rather than order the list
chronologically. And second, Bradley polled different
populations, presumably with the aim of increasing variance which
he would then attempt to explain. Bradley polled scholars,
judges, lawyers and students. In each subset, he gave respondents
an opportunity to specify the basis for their rankings.
Bradley mailed questionnaires to a combined list of 221 APSA and
LSA members. He surveyed attorneys culled from the telephone
directory, presumably in his area around Normal, Illinois. He
employed a stratified sample of 121 Illinois state and local
judges. Finally, Bradley surveyed 117 undergraduates and graduate
students. I presume these were students enrolled at Illinois
State University, but he does not explain where or why these
particular students were targeted for inclusion in the survey.
Bradley s goal was to determine the existence of consensus among
the four groups regarding the identity of great justices and the
criteria employed in making these choices. Bradley sought to
identify the ten greatest justices. Replies were weighted by
rank, i.e., the justice in the first position received ten
points, the justice in the second position received nine points,
etc. Bradley aggregated the scores for each ranked justice and
then compiled a ranked list for the entire pool of respondents.
The response rates for the scholars was about forty percent. He
does not report the response rate for the judges, but he does
indicate that it is considerably lower. Bradley does not report
the response rates for the other groups. I presume that were
these response rates credible, i.e., greater than seventy
percent, Bradley would have reported them. Frankly, the fact that
he reports only the scholar response rate, and then decides that
this is a good rate (p.15) makes me question the other surveys.
I, for one, doubt confident conclusions from surveys resting on
such weak empirical foundation. Bradley does not allay the
skeptics concern by analyzing the nonrespondents in an attempt to
rule out or minimize bias or rival explanations. Bradley simply
reports his findings.
Bradley found some agreement on the reasons for inclusion on each
short list. Writing ability was the top criterion for attorneys,
judges, and students. Leadership and impact on the law were most
important to scholars. There are some interesting findings here.
For example, all but the students ranked John Marshall and Oliver
Wendell Holmes Jr.first and second. (Students ranked William
Rehnquist second.) William Brennan made all the lists except for
the attorneys . The students ranked Thurgood Marshall and Harry
Blackmun eighth and ninth, respectively. Neither Marshall nor
Blackmun made the other lists. Bradley reports these findings but
does not speculate on the similarities or differences. Why, for
example, should we find John Marshall at the top of everyone s
list? Why should Brennan be absent from the attorneys list when
it is easy to make the argument that Brennan had an extraordinary
career based on the criteria articulated by the attorneys
themselves. Something is amiss here, but there is no attempt to
enlighten us with an explanation. The surveys also made me ponder
why there is so much commonality among the different respondent
groups. We learn about the justices and their work from the
edited materials presented to us as students. So the field has
been focused for us by the editors of the cases and materials
which often serve as the first lesson about the Court and its
work. There are few opportunities to learn about Gabriel Duvall
or Thomas Todd. Given the limited set of materials, it would be
interesting to assay which justices are at the bottom of the
heap. Frank Easterbrook and David Currie engaged in this badenage
some years ago for the University of Chicago Law Review when they
debated who was the most insignificant justice.
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Bradley s findings are open to challenge. It would be unwarranted
to generalize from his data. Despite this shortcoming, the notion
of greatness on the Court does encourage playful and serious
speculation.
Some of the essays are praiseworthy. Let me single out the ones
by Kenneth Holland (on Roger B. Taney) and Linda C.A.
Przybyszewski (on John Marshall Harlan I). I found these papers
especially insightful and provocative. It was refreshing to view
Taney as the first supreme activist, justifying his place in the
pantheon of great justices. The contrast between Harlan s
personal life and the moral positions he expounded from the bench
gave me new understanding into Harlan s character.
I should add that there is much to forget in this volume. It will
become apparent to readers as they glaze over arguments and
evidence they have seen before. The collection also suffers from
a fair share of poor copyediting.
Copyright 1994