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April 1, 2014

Ranking the Supreme Court's heavy hitters

(Continued)

  • Louis Brandeis (1916). Brandeis is often grouped with Holmes as a great early proponent of judicial modesty, as well as an ardent defender of freedom of speech. But his sensibility was altogether different. His eyes were on the heavens. He believed that "the greatest menace to freedom is an inert people." He wrote: "Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty."
  • Felix Frankfurter (1939). Many liberals were, and remain, deeply disappointed with Frankfurter, who toed no party line. A powerful critic of Warren court activism, Frankfurter argued for small, incremental steps. He wanted to avoid the most fundamental questions, and he made powerful arguments for his minimalist approach. He was wise, and he was deep, and he is underrated; it's high time for a Frankfurter revival.
  • Robert Jackson (1941). A piercing intellect and the greatest writer in the history of the court, Jackson did not go to law school. (No smirking, please.) Jackson helped to develop doctrines that govern contemporary understandings of free speech and separation of powers, above all the authority of the president.

No other justice wrote sentences like this: "Compulsory unification of opinion achieves only the unanimity of the graveyard." Or this: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." Jackson made Supreme Court opinions sing.

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