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.