By James Romoser
on April 3, 2021
at 5:56 p.m.
A liberal icon, a conservative icon, an early 19th century pioneer, an early 20th century light fixture. One of these four candidates is selected by SCOTUSblog readers as the greatest judge on the Supreme Court.
SCOTUS bracketology started with a field of 16 former judges from across history. After two voting rounds, we have now reached the last four. (The results of the first round can be found here. The results of the second round can be found here. As a reminder, we have explained our criteria for the initial sowing and selection here.)
This persistent tetrad of judges (just enough to issue a certificate!) Aptly portrays 220 years of American jurisprudence. In their ideologies, sensitivities, and historical eras, these four semi-finalists are different in many ways – though the lack of racial and gender diversity is also a sad reflection of the court’s history.
It is up to you to determine who should advance to the championship. The voting for this round remains open until Tuesday, April 6th, midnight. And as always, if you have thoughts on the Final Four or want to lobby for justice deserves to be champions, drop us an email. We can include some reader comments in the finals.
1 John Marshall against 4 Antonin Scalia
“If the court has a baby Ruth, it’s John Marshall,” wrote legal scholar Cass Sunstein. In this tournament, Marshall is more like the Gonzaga Bulldogs 2020-21. The No. 1 overall seed he made the Final Four with two airy wins against Sandra Day O’Connor and John Marshall Harlan, and his highlight role is impressive. In Marbury v Madison he established the power of the Supreme Court to declare Congressional acts unconstitutional. In McCulloch v Maryland, he expanded the power of the federal government in a young nation. In Gibbons v. Ogden, he clarified the authority of Congress to regulate international trade. In Martin v Hunter’s Lessee and Cohens v Virginia, he affirmed the Supreme Court’s authority over state courts on federal matters. American constitutional law builds on the framework established in these and other cases.
Antonin Scalia had a more difficult path to get to this point – his games against Thurgood Marshall and William Brennan were both crucial. But Scalia fans will argue that his influence on the pitch was as significant as anyone else’s. He joined the court in 1986 and, as Chief Justice John Roberts noted in 2011, “the place has not been the same since then.” Scalia advocated an originalist reading of the constitution, a textualist approach to legal interpretation and a rejection of unlisted constitutional rights. His notable opinions include District of Columbia v Heller (declaring an individual right to own guns), Crawford v Washington (extending defendants’ right to confront witnesses against them), and his legendary lone dissent in Morrison v Olson (arguing against) the Independent Counsel Act on Separation of Powers). Since his death in 2016, Scalia’s legal philosophy has in some ways become the standard method of interpretation, with newer judges sometimes arguing over who is best to wear the Scalia coat. Even Elena Kagan said after Scalia: “We are all textualists now.”
However, many of Scalia’s views are just as likely to provoke outrage as admiration. In his dissent in Lawrence vs. Texas, he argued that the court should obey laws that criminalize gay sex, and he consistently disagreed with later decisions granting LGBTQ people equal rights. And he was convicted of suggesting, during a positive action hearing in 2015, that black students “should go to a slower school where they will do well”. As with Marshall’s series of early 19th-century opinions defending the institution of slavery, those views are unlikely to prevail at the court of history.
3 Earl Warren versus 7 Louis Brandeis
Earl Warren, who had easily won over Anthony Kennedy and Hugo Black in the first two rounds, was the leader of the court in his most liberal days. He was so oversized that he was called a “super boss”. Warren was a politician first: a three-time governor of California and the vice-presidential colleague of Thomas Dewey in the 1948 election. But as chief judge, he made his greatest impact on American life. He started his tenure with a bang, writing the Court’s Unanimous Opinion in Brown v Board of Education in his first term. He followed suit with a series of landmark decisions that are fundamental to the modern American concept of justice: Loving v. Virginia (Repeal of Prohibitions on Interracial Marriage), Miranda v. Arizona (anchoring the “Miranda warnings” as necessary protection for criminal suspects) and Reynolds against Sims (consolidating the “one person, one vote” principle). Martin Luther King Jr. once wrote to Warren to praise his “unwavering dedication to the lofty principles of our American democracy.”
Similar feelings have been expressed about Louis Brandeis. According to one biographer, he was “a lifelong advocate of an open libertarian democratic society”. But can this understaffed 7-seed champion become SCOTUS-Bracketology? He defeated just under two giants – Joseph Story and Oliver Wendell Holmes – to reach the Final Four, but those wins weren’t a problem. In many ways he helped modernize the law for the twentieth century: he rejected the laissez-faire economic philosophy to which most judges of the time adhered; He laid the groundwork for privacy rights in his dissent between Olmstead and the United States. he articulated a modern understanding of free speech in his dissent from Whitney to California; he voted to maintain New Deal legislation; and – perhaps to the chagrin of freshman law students everywhere – he wrote Erie Railroad v. Tompkins and created the modern law of diversity jurisdiction in federal courts.
But as in the first match, the two competitors are also criticized here. Warren, despite his influence, was not known as a great writer or brilliant legal mind (William Brennan was probably the best intellectual at the Warren court). And his critics see him little more than a policymaker who openly despised the idea of the restraint of the judiciary and shaped the constitution to fit his own view of justice. Brandeis could similarly be accused of being a results-based judiciary, and some of his voices in key cases are serious flaws in his otherwise progressive record (notably voting with Holmes and seven other judges in Buck v Bell to uphold mandatory sterilization for humans with intellectual disabilities).