Michael Paulsen on Justice Scalia
Michael Ramsey
At Public Discourse, Michael Paulsen: The Supreme Greatness of Justice Antonin Scalia. It begins:
Antonin Scalia was, easily, one of the five greatest Supreme Court justices in U.S. history. He was, indisputably, the greatest justice of the past fifty years. For his immense contributions to constitutional discourse, for the soundness of his constitutional vision, for the rigorous and vigorous quality of his opinions, for the fearlessness and peerlessness of his constitutional vision, Justice Scalia clearly belongs in the pantheon of greatest Supreme Court justices of all time.
My personal Top Five list would include, in addition to Scalia, the great Chief Justice John Marshall and the classically brilliant Robert Jackson. Filling the last two slots is a bit harder. Plausible nominees include Earl Warren, Harlan Fiske Stone, Hugo Black, the first Justice John Harlan, and perhaps Joseph Story. Other options—but names I think must ultimately be rejected—include Oliver Wendell Holmes, Felix Frankfurter, and William Brennan. Each of these men, for all their intellectual or political or linguistic brilliance, was severely deficient on one or more of the crucial criteria I will discuss below.
Making such a bold comparative claim on behalf of Antonin Scalia requires some criteria for assessing true greatness in a Supreme Court justice. I submit that the standards for measurement are as follows: (1) the soundness of a justice’s constitutional principles (an absolute prerequisite); (2) the vigor, candor, and persuasiveness with which they are held, articulated, and publicly defended; (3) the public moral courage of the man or woman, in terms of fearless willingness to adhere to sound principles and to the rule of law, even in the face of public sentiment and collegial opposition; (4) the sustained avoidance of commission of a clear legal and moral wrong—that is, the avoidance of atrocity and complicity in atrocity in one’s votes and opinions; and, last and least, (5) success in moving the Court, and the nation, toward constitutional and rule-of-law faithfulness. ...
(Thanks to Michael Perry for the pointer).
I would also nominate Benjamin Curtis, simply for his Dred Scott dissent (one of the greatest originalist opinions of all time). Plus he resigned from the Court in disgust to return to law practice. How's that for a statement?
Justice Scalia said several times, as I recall, that this paragraph from Curtis' dissent was his favorite passage in any Court opinion:
And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress, or, what in my opinion would not be preferable, an exponent of the individual political opinions of the members of this court. [60 U.S. at 621]