Yesterday Cass Sunstein, one of the most formidable thinkers on the left today, devoted his Bloomberg column to his eight favorite Supreme Court justices, whom he called the “Home Run Hitters of the Supreme Court.” Why only eight? Wouldn’t you want to field a full all-star team of nine, so we can get 5-4 rulings? Why invite extra innings? This may be the first sign that he was pulling our leg for April Fools’ Day.
But then consider his eight, and you’ll really be sure he was just joshing us. His eight are: John Marshall, Oliver Wendell Holmes Jr., Louis Brandeis, Felix Frankfurter, Robert Jackson, Earl Warren, William Brennan, and William Rehnquist.
Okay, Marshall has to be on anyone and everyone’s list, and if you’re a liberal like Sunstein the rest of the list makes narrow sense, with Rehnquist being the obvious outlier placed on the list just to mess with us. But Holmes? Holmes would be unconfirmable to the Supreme Court today, and not just because of his odious opinion in Buck v. Bell, but because of his underlying contempt for the natural rights of individuals, as he made clear over and over again in his private letters and writing. “All my life I have sneered at the natural rights of man—and at times I have thought that the bills of rights in Constitutions were overworked,” he wrote in 1916.
I concur with the judgment of Walter Berns, who wrote 40 years ago about Holmes: “No man who ever sat on the Supreme Court was less inclined and so poorly equipped to be a statesman or to teach, as a philosopher is supposed to teach, what a people needs to know in order to govern itself well.” Sunstein—unwittingly?—makes the case against Holmes himself:
Holmes’s defining contribution was an insistence on a modest role for the federal judiciary. His pithy explanation: “If my fellow citizens want to go to Hell I will help them. It’s my job.” Holmes insisted that a constitution “is made for people of fundamentally differing views.” If Marshall was the court’s Babe, Holmes was its Hank Aaron — the greatest home-run hitter who didn’t use steroids.
This is stupid as well as wrong; Holmes’s “modest role” for the judiciary was a green light for the administrative state to run roughshod over our rights. Which is why Sunstein really needs to try harder to pull our leg on April Fools (except that–yes–Sunstein approves of the administrative state, and would like it to be still bigger than it already is).
So who are my top nine All Stars? Here goes: John Marshall, Joseph Story, Stephen Field, George Sutherland, Clarence Thomas, Rufus Peckham (yes, you read that right, because Lochner was correctly decided), John Marshall Harlan, Benjamin Curtis, and Lucius Quintus Cincinnatus Lamar. (Okay, the last one is just because he has the coolest judicial name ever. He wasn’t on the Court very long, and left no memorable opinions.) Sutherland gets the nod for Chief Justice in my Fantasy Judicial League.
By the way, if you’re curious about why Sutherland is so great, get this book.