Evaluating Justice Black

My last post argued that Justice Hugo Black was not the most overrated justice and in fact was a first rate justice. I thought I would comment here on attempts to rate Justice Black as a justice – a matter that was recently debated by Will Baude and David Bernstein of the Volokh Conspiracy.

I always have a hard time with lists of great justices or great presidents, because it is always difficult for me to determine what are the appropriate criteria. As a libertarian, I have certainly been upset by the liberal or progressive historians or law professors selecting justices or presidents based on their own politics. Its fine if people want to rate officials based on their politics; the raters, however, should make clear that is what they are doing.

Attempts at nonpolitical criteria avoid the problems of political ratings, but introduce other challenges. One might judge presidents or justices based on how consequential they were, but unless one smuggles in political criteria, one can be an enormously bad president or justice and be very consequential.

Will defended Justice Black on grounds of “historical significance and legal ability.” Historical significance appears to be nonpolitical. Legal ability could be political or nonpolitical, depending on how one understands legal ability.

My defense of Justice Black is based on normative criteria – I believe that Black was an originalist/textualist and that is the right way to interpret the Constitution. While I acknowledge that Black probably got some textual and historical issues wrong, he still had the correct goal and did not appear to pursue the goal in a bad faith way. Especially given the period during which he served, Black’s achievement in pursuing originalism and doing so in a way that avoided many of the mistakes that others made (such as dismissing incorporation) was significant.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, will be published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. James W Cotter says

    Isn’t anyone who contributes to this site going to challenge the claim that Justice Black was correct on incorporation. Starting aboutn 1870, there were numerous movements to pass an amendment that would apply the establishment clause to the states (see Hamburger et al). Evidently incorporation went unnoticed by the entire country.

  2. Mike Rappaport says

    The Supreme Court, in some very bad opinions, such as Slaughterhouse, had decided against incorporation under the Privileges or Immunities Clause. The country accepted those decisions, even though they were wrong.

  3. James W Cotter says

    The movement for an amendment to apply the establishment clause to the states began well before the Slaughter House cases . The idea that the conservative and moderate Repubicans who passed the 14th Amendment would surrender that much state sovereignty without a vigorous national debate is beyond belief. That is why the Court has never accepted Justice Blacks opinion and invented selective incorporation instead. It has declared that by the dfinition of “ordered liberty” it, the Court, has the authority to decide what amendments shall be applied to the states. Justice Scalia has stated it is the biggest stretch the Court has ever made.
    I remain surprised that a blog that claims respect for original intent would assume otherwise.

  4. says

    James, did you notice that Michael makes statements like: “… in some very bad opinions, such as Slaughterhouse, (the court) decided against incorporation under the Privileges or Immunities Clause, and “The country accepted those decisions, even though they were wrong.”– but HE never explains “why”? The answer to that is, he personally, as a scholar is evidently limited in his ability to “explain” his off-hand remarks. He’s never expressed in my questioning of him, in the recent past, a detailed explanation — EITHER. He, in my estimation, is just a “repeater”, with no constructive originality in his narratives. (I believe your challenge received
    the same lack of “explanation”.) Nice hearing your answers, James.
    Respectfully, John

  5. Allison Williams Esq. says

    He had a good run but then could have done much better. While it is evident that there will be differences in opinions regarding his tactical efforts, it is unavoidable when certain decisions had to made on a bigger and a broader level. You cannot please everyone but can atleast try to do the right things in the right way.

    • says

      Allison, so that I do not misunderstand “… it is unavoidable when certain decisions had to made on a bigger and a broader level”, please elaborate to some degree for me.
      Thank you, Respectfully, John

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