Who Should Reign Supreme?

Reason asks libertarian legal experts: Who are your favorites--past, present, and future--on the nation's highest court?

From the July 2005 issue

(Page 2 of 6)

All-time favorite Supreme Court justice: My hidden favorite is Mahlon Pitney, who served with both Louis Brandeis and Oliver Wendell Holmes (between 1912 and 1922) and consistently outdueled them on key issues dealing with freedom of contract.� Widely discredited or ignored, he wrote such key decisions as Coppage v. Kansas (1915), which held that employers on railroads could not be forced to bargain collectively; Hitchman Coal v. Mitchell (1917), which held unions liable for tortious interference with contract when they urged workers to remain on the job after joining the union, when they had promised to quit if they did so; New York Central RR Co. v. White (1917), which upheld workers' compensation laws against federal challenges; and International News Service� v. Associated Press (1918), a seminal case on the common law tort of misappropriation.

Mike Godwin

Contributing Editor Godwin is legal director of Public Knowledge.

Favorite sitting Supreme Court justice: I'm happy with John Paul Stevens, who wrote the opinion of the Court in the Communications Decency Act case, Reno v. ACLU (1997). Stevens was responsible for the unfortunate plurality decision in FCC v. Pacifica (1978), which gave us the problematic notion of broadcast "indecency." But he redeemed himself in Reno v. ACLU, when he led the Court in refusing to extend that notion to the Internet. It's true that the Court struck down the CDA in a 9-0 vote, but it meant a lot that Stevens was the one who corralled the runaway indecency doctrine before it stampeded over the new democratic power of the Internet. Stevens also wrote the Court's majority opinion in Universal City Studios v. Sony (1984). That case, which found that VCRs, and by implication other recording and transfer technologies, are lawful if they are capable of substantial use that does not infringe on copyrights, set the stage for 20 years of accelerating technological innovation, from the iPod to TiVo.

All-time favorite Supreme Court justice: Chief Justice John Marshall is an easy pick, so I won't pick him. Instead, I'd like to draw your attention to Louis Brandeis, one of the finer, more thoughtful pens to write Supreme Court dissents. His comments about speech and privacy are so good that they ring true today. Here's Brandeis on freedom of speech in Whitney v. California (1927): "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears." And here's Brandeis on wiretapping in Olmstead v. U.S. (1928): The Framers "conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men." Brandeis understood things about individual liberty and autonomy that many more-modern justices don't.

David Post

Post is a professor of law at Temple University and a former clerk for Justice Ruth Bader Ginsburg.

Nominees for the Court: Richard Posner, U.S. Court of Appeals for the 7th Circuit. He has an obviously formidable intellect--his new-book-every-six-months routine is testament to that. And though his law-and-economics approach can sometimes be doctrinaire and rigid, he would bring a kind of intellectual vitality to the Court that could help shake up some old ideas that take root from time to time.

Steve Williams and David Tatel, both judges on the U.S. Court of Appeals for the D.C. Circuit. They have the same thing that Posner has: brilliance, and they're not afraid to go where their intellect leads them. Williams is a libertarian conservative, Tatel a Clintonian liberal; it's why they make a good pairing.

Harvard President Larry Summers. I'm being only half-facetious. Summers might find a job with life tenure quite attractive these days, and I've long thought that having one or two non-lawyers on the Court would be a good thing. "The life of the law," Holmes wrote, "is experience," and he was right--you don't need to have been inducted into the priesthood to understand the issues in the vast majority of cases (and in any event, that's why you have lawyers representing both sides, to explain to you precisely what they think the issues are). Summers is just the kind of guy you'd want there; like Posner, Williams, and Tatel, he's not afraid to turn things upside down and think about them in new ways. In fact, I'd take my chances with a court composed of these four.

Favorite sitting Supreme Court justice: It's gotta be Ruth Ginsburg. Not only because I clerked for her (twice, actually--once on the D.C. Circuit, once at the Supreme Court), but because she's judicious, in the best sense of that word--careful, thoughtful, fair. Second place goes to Scalia, probably because he's not careful, thoughtful, or (particularly) fair, only brilliant. If I had to choose the collected opinions of one sitting justice to take with me to the desert island, it would have to be Scalia; he's the Great Dissenter of this generation (e.g., read his truly devastating analysis in dissent in the recent case declaring execution of juveniles unconstitutional).

All-time favorite Supreme Court justice: Oliver Wendell Holmes. He wrote prose like an angel. Before Holmes, legal opinions read like they had been translated into English from some other language; Holmes wrote muscular, modern English, and he transformed the entire form for the better, almost single-handedly.

While he was deeply and profoundly skeptical about human beings and their affairs, he was never cynical; though he understood perfectly well that judges did not reveal Truth, or Platonic Justice, but simply worked out more (or sometimes less) reasonable accommodations between competing interests, he never allowed that to get in the way of his obligations as a judge to render the best justice he could in any given case. And his great free speech dissents (with Brandeis, usually) are the most eloquent modern defenses of the central role the First Amendment must play in our political system.

Larry Klayman

Klayman is chairman and general council of Judicial Watch.