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The Shameful Sixteen


The entertaining 5-4 Pod is running a counter-competition to the SCOTUSblog Supreme Court bracket, trying to identify the worst Supreme Court justices in history. Since voting ends tonight I thought I would tell you who I thought should advance to the anti-elite 8:

(1)Taney over (5)Kavanaugh: The author of Dred Scott is the #1 seed for a reason, and the best possible defense of his tenure (i.e. he was just a generic Jacksonian hack) remains incredibly damning. I’m sure Kavanaugh will make this most interesting as his career proceeds but as of now Taney, like whiskey, is hard to beat.

(6)Bradley over (2)Black Black’s record has been tarnished in retrospect for good reason; not only did he write Korematsu, but there was his last you-can-take-the-boy-out-of-Jim-Crow-Alabama-but decade, and worse by staying on for years past his sell-by date he handed another seat to Nixon. Still, on total body of work I can’t see Black as one of the worst justices in Supreme Court history; Frankfurter cast the same vote in Korematsu only for Frankfurter the vote was more the rule than the anomaly, while Black remained committed to civil liberties when most Cold War liberals weren’t. Bradley’s direct role in freeing the perpetrators of the Colfax massacre is at least as bad as Koremastu without the countervailing positive accomplishments, plus Hans v. Louisiana was an underrated awful opinion that would prove to have a very pernicious influence when it was hauled out of the mothballs by the Rehnquist Court.

(1) Rehnquist over (4) Thomas A tough one, but Thomas is a least capable of interesting writing and occasionally his idiosyncrasy occasionally leads to correct outcomes. Rehnquist lied to get on the Court and there was almost nothing redeeming about his tenure on it.

(3) Roberts over (7) Powell Powell was worse than his reputation, but his country club Republicanism did produce enough liberal results (especially on reproductive freedom) to rank him as less bad than the author of Shelby County and Rucho, the cases that may well bring down American democracy yet.

(5) Alito over (1) Scalia Scalia was showier, but beneath his ability to mask extremely partisan opinions in a fog of technical-seeming language, Alito is the most consistently reactionary Supreme Court justice since World War II. If you’re a liberal, you’d rather have Scalia and it’s not really even close.

(3) Burger over (2) Brown Brown was the Fuller Court nonentity whose chambers issued Plessy v. Ferguson. Given how massively overdetermined Plessy was, I’m not sure how much personal blame should go to Brown; Plessy was the symptom of a ruling elite that had completely abandoned any commitment to civil rights. Burger played a major rule in rolling back the civil rights and civil liberties gains of the Warren Court, and many of the crucial rulings were 5-4. Really awful Chief Justice too (which, admittedly, is more of a feature than a bug from a liberal perspective.)

(1) McReynolds over (5) Sutherland The two Four Horsemen were mostly allies, of course. But Sutherland was much smarter and less personally bigoted, and while the differences between them were mostly formal sometimes they actually mattered. You can make a very strong case that McReynolds had the lowest WAR of any Supreme Court justice in history. Thank you Woodrow Wilson!

(2) Field over (3) Van Devanter Whew. Van Devanter was a very, very slightly more refined McReynolds (although at least he did join the majority in Powell.) But I have to give it to Field on sheer body-of-bad-work grounds.

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