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Vision Problems

The Supreme Court's most innovative justice (it's not who you think)

The justices of the Supreme Court have historically included people who seemed, even during their service, to be genuine visionaries. But things are different today. Notwithstanding its unsurpassed level of competence, the Court lacks true visionaries--in a way that tells us a great deal about the nature of contemporary constitutional law. There is an important qualification to this claim. But, before explaining that qualification, we need to clarify some terms.

In the twentieth century, the Court's most obvious visionaries were Oliver Wendell Holmes Jr., Louis Brandeis, Earl Warren, Hugo Black, William O. Douglas, William Brennan, and Thurgood Marshall. All of these justices count as visionaries in a particular sense: They had large and powerful visions of the meaning of the Constitution, and they worked hard and often successfully to convince their colleagues to embrace that vision. These justices also displayed undeniable courage, arguing on behalf of their constitutional vision regardless of its inconsistency with orthodox opinion in important circles--or even in the nation as a whole.

Intriguingly, most of the Court's visionaries came in three identifiable pairs of frequent dissenters: Holmes and Brandeis, Douglas and Black, Brennan and Marshall. And, in many domains, the dissenting pairs had a powerful effect on the law, moving the Court as a whole in their direction.

A justice can be a visionary without being excellent and even without being especially good. To be sure, Holmes and Brandeis were brilliant justices. But Douglas was erratic and often sloppy. Black relied on a form of unhelpful literalism, arguing, altogether implausibly, that the text of the Constitution provided unambiguous guidance in the hardest cases. Warren, Brennan, and Marshall had wonderful moments, but in terms of judicial craft, none of them can be ranked with (for example) Robert Jackson or Felix Frankfurter.

Some of the Court's best justices do not qualify as visionaries. Jackson, Frankfurter, and John M. Harlan belong near the top of any list of the Court's all-time greats. But, generally, they were modest in their aspirations. Much of the time, they decided cases without setting out ambitious accounts of how to understand large areas of the law. And, on those rare moments of ambition, they often sought to produce analytic clarity rather than to offer any kind of grand or sweeping vision for constitutional change or social reform.

In the last two decades, all of the so-called "liberals" on the Court have been minimalists, more in the mold of Jackson, Frankfurter, and Harlan. The two Democratic nominees--Ruth Bader Ginsburg and Stephen Breyer--are exceedingly careful lawyers who usually avoid grand pronouncements. In terms of their basic approach, they are at an opposite pole from Douglas, Black, Warren, Brennan, and Marshall. William Rehnquist did have a massive effect on the law, and there is no question that he sought, with considerable success, to implement a kind of constitutional vision. But he generally did so through a series of incremental movements, not with the sweeping opinions characteristic of Holmes, Brandeis, or Black.

Does it follow that we are now in a period lacking constitutional visionaries? Actually, no. In an important respect, Antonin Scalia and Clarence Thomas qualify as the successors of the great dissenting pairs in the Court's history. Scalia and Thomas have a clear and large-scale vision for constitutional law, in which (for example) affirmative action is abolished, Roe v. Wade is overruled, commercial advertising receives broad protection, campaign finance laws are invalidated, congressional power is significantly limited, and the president receives broad power to protect national security. In fact Scalia and Thomas are playing very much the same role as Brennan and Marshall in the 1970s, Douglas and Black in the 1950s, and Brandeis and Holmes in the first decades of the twentieth century--offering clear, passionate, dissenting opinions with a significant effect within the Court itself and even the nation as a whole.

Of course these claims raise many questions. How shall we classify the Court's "Four Horsemen" of the early twentieth century (Justices James Clark McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler), who voted to strike down maximum-hour and minimum-wage laws? In a democracy, isn't it best to have justices who are careful and excellent, rather than visionary?

The answers to these questions are not obvious. But one thing is entirely clear: The absence of anything like a heroic vision on the Court's left, and the existence of such a vision on the Court's right, is having a major and largely unnoticed impact on public understanding of both the Court and the Constitution.

By Cass R. Sunstein