By James Romoser
on April 14, 2021
at 12:19 pm
Forget Ali versus Frazier, Celtics versus Lakers, or Evert versus Navratilova. It’s time for Marshall vs. Warren.
After three rounds of the very first SCOTUS bracketology tournament, there are only two judges left. Both held the title of Chief Justice. Both changed American law and American society. Both are legal titans who have defeated a number of worthy contenders to achieve the championship. But only one can be selected by SCOTUSblog readers as the greatest justice in the history of the court.
To see how we got here you can check out the first round results, the second round results and the semi-finals. We have explained our original sowing and selection criteria here. Of course, no March Madness tournament is uncontroversial, and some discontented people have made fun of ours. Too triumphant? Bad sowing? Skewed in a liberal direction? Skewed in a conservative direction? We have heard these complaints and more. Our bracket even inspired a competitive tournament with a slightly different agenda – an event based on an underachievement that no one should be proud of. A bit like the NIT.
But enough with March Madness melodrama. This is the final round of the big dance and it’s time to vote. Here is the championship game.
1 John Marshall versus 3 Earl Warren
Ask a constitutional law student to name the Supreme Court’s most iconic ruling and they’ll likely answer Marbury vs Madison. Ask the average American and they will likely go for Brown versus Board of Education. These two landmark decisions are considered to be the most famous decisions the court has ever made. The former was written by John Marshall. The latter was written by Earl Warren.
In 1803, at Marbury, Marshall established the most important power of the Supreme Court in our system of mutual scrutiny: the principle that the court has the final say on what the Constitution means – and, more broadly, the power to take unconstitutional action by Congress and the Congressional annulment of the President. As Marshall later wrote in McCulloch v. Maryland wrote: “[W]We must never forget that it is a constitution that we are setting out. “This is possibly the most important sentence the court has ever published. It articulates the principle that although the political branches may contain mercury, the importance of the nation’s highest law (as determined by the court itself) must remain a permanent safety net.
In his 34 years as boss and 536 majority votes, Marshall has increased not only the Supreme Court but also the power of the federal government. A lifelong federalist who defied Jefferson’s view of democracy, Marshall largely interpreted the powers of Congress and declared the supremacy of federal law over state law. And as controversial as many of his decisions were at the time, the principles he formulated have been largely undisputed for two centuries. “Marshall found the constitution. and he made it into power, ”wrote President James Garfield. “He found a skeleton and made it flesh and blood.”
More than a century later, Earl Warren took the place Marshall once occupied. He was on the field for only 16 years, less than half of Marshall’s tenure. But his tenure was no less influential. In the 1950s and 1960s, the Warren Court issued a series of transformational decisions that expanded the rights of minorities, defendants, and the press. First up was Warren’s 1954 position in Brown, which included another candidate for the most important line in court history: “Separate educational institutions are inherently unequal.”
The Warren Court pronouncements – often in broad language reminiscent of Marshall’s – did not stop there. His decisions on freedom of speech (New York Times v Sullivan and Tinker v. Des Moines), criminal justice (Terry v Ohio and Miranda v Arizona), voting rights (Baker v Carr and Reynolds v Sims), privacy (Griswold v. Connecticut), and race (Brown and Loving v. Virginia) laid the foundation for modern jurisprudence in these areas. Warren did not produce the majority opinion on any of these cases, but he was undoubtedly the moral leader of the court, urging his fellow judges to embrace sweeping change. As President Harry Truman put it, “The Warren Report as Chief Justice put him on the annals of history as the man who read and interpreted the Constitution for its ultimate purpose. He felt the call of time – and he rose to the call. “
It’s no surprise that between these two finalists, one is known as the big boss and the other as the super boss. Which boss will deserve the title? It’s up to you now. Due to technical problems with our internal polling system, voting for the final round will be carried out on Twitter. The vote lasts 48 hours. Please cast your vote for the winner of the SCOTUS bracket olology here:
We have reached the final round of SCOTUS bracketology and two famous chief judges are about to start the championship. One wrote Marbury v. Madison. The other wrote to Brown v. Board. You can find our full description of the two finalists here: https://t.co/P2su0LDf3P
Cast your vote below!
– SCOTUSblog (@SCOTUSblog), April 14, 2021