Influence on the Supreme Court
posted by Gerard Magliocca
I just finished the new biography of Justice Brennan, and I was very impressed. My thought was that there was no way a balanced account could be written about such a polarizing figure, but the authors pulled it off. Now the book does suffer from the weakness of the judicial biography genre, which is that judges generally lead dull lives, but it’s a great resource on the Court’s internal politics during his tenure.
Brennan is widely acclaimed as one of the most “influential” Justices. What do people mean when they say that? I think that there are several types of influential Justices depending on your time horizon.
1. The Median Justice. In any given period, somebody is the swing vote on the Court. Right now that is Justice Kennedy. The swing Justice is often described as influential, but that title disappears once the median position shifts. If you look at past examples, nobody much cares about the opinions of this type of Justice in the long run, with the possible exception of Justice Powell.
2. The Coalition Builder. This is the one who is the best at convincing the median Justice. Justice Brennan fits this model. Filling this role requires a willingness to sacrifice logical consistency to accommodate the views of colleagues, and this can weaken the persuasiveness of the opinion for subsequent cases. That may not matter, though, if the holding is the critical aspect of the decision. Law professors may criticize aspects of Baker v. Carr or Plyler v. Doe, but those holdings were very important and are now deeply woven into American life.
3. The Great Writer. To a significant extent, judicial influence depends on how quotable the opinions are. An old line from the Second Circuit about Learned Hand and Augustus Hand said “Quote Learned, but go with Gus.” In other words, Augustus Hand was a better judge, but Learned was the more influential one. Justice Robert H. Jackson is one example of this type.
4. The Visionary. Some Justices are important because they advance an overarching view of the Constitution that is persuasive over time (whether due to their efforts or not). These folks often start out in dissent and are not interested in persuading their colleagues. They are instead interested in convincing law students and the wider public. They are also not so keen on stare decisis or avoiding unnecessary questions, since they want to put forward their theory as often as they can and brush aside contrary authorities. John Marshall Harlan the elder is an example of this category.
No Justice fits all of these categories. Indeed, John Marshall may be the only one who fits more than one, though you could also put Holmes, Brandeis, and Scalia in that set.