Vol. 4, No. 4 (April, 1994), pp. 56-57.

GREAT JUSTICES OF THE U.S. SUPREME COURT: RATING & CASE STUDIES by William D. Pederson and Norman W. Provizer (eds.). New York: Peter Lang, 1993. 388 pp. Paper $32.95.

Reviewed by Jerry Goldman, Northwestern University

This collection of eighteen loosely joined essays and a selected bibliography is the product of a 1990 national conference on the issue of greatness on the U.S. Supreme Court. The conference setting was Louisiana State University in Shreveport.

Robert C. Bradley s opening essay ( Who Are the Great Justices and What Criteria Did They Meet? ) holds out the promise of advancement over other such lists dating back more than 60 years. Bradley had two objectives. First, he sought to rank entries according to a set of criteria rather than order the list chronologically. And second, Bradley polled different populations, presumably with the aim of increasing variance which he would then attempt to explain. Bradley polled scholars, judges, lawyers and students. In each subset, he gave respondents an opportunity to specify the basis for their rankings.

Bradley mailed questionnaires to a combined list of 221 APSA and LSA members. He surveyed attorneys culled from the telephone directory, presumably in his area around Normal, Illinois. He employed a stratified sample of 121 Illinois state and local judges. Finally, Bradley surveyed 117 undergraduates and graduate students. I presume these were students enrolled at Illinois State University, but he does not explain where or why these particular students were targeted for inclusion in the survey.

Bradley s goal was to determine the existence of consensus among the four groups regarding the identity of great justices and the criteria employed in making these choices. Bradley sought to identify the ten greatest justices. Replies were weighted by rank, i.e., the justice in the first position received ten points, the justice in the second position received nine points, etc. Bradley aggregated the scores for each ranked justice and then compiled a ranked list for the entire pool of respondents.

The response rates for the scholars was about forty percent. He does not report the response rate for the judges, but he does indicate that it is considerably lower. Bradley does not report the response rates for the other groups. I presume that were these response rates credible, i.e., greater than seventy percent, Bradley would have reported them. Frankly, the fact that he reports only the scholar response rate, and then decides that this is a good rate (p.15) makes me question the other surveys. I, for one, doubt confident conclusions from surveys resting on such weak empirical foundation. Bradley does not allay the skeptics concern by analyzing the nonrespondents in an attempt to rule out or minimize bias or rival explanations. Bradley simply reports his findings.

Bradley found some agreement on the reasons for inclusion on each short list. Writing ability was the top criterion for attorneys, judges, and students. Leadership and impact on the law were most important to scholars. There are some interesting findings here. For example, all but the students ranked John Marshall and Oliver Wendell Holmes Jr.first and second. (Students ranked William Rehnquist second.) William Brennan made all the lists except for the attorneys . The students ranked Thurgood Marshall and Harry Blackmun eighth and ninth, respectively. Neither Marshall nor Blackmun made the other lists. Bradley reports these findings but does not speculate on the similarities or differences. Why, for example, should we find John Marshall at the top of everyone s list? Why should Brennan be absent from the attorneys list when it is easy to make the argument that Brennan had an extraordinary career based on the criteria articulated by the attorneys themselves. Something is amiss here, but there is no attempt to enlighten us with an explanation. The surveys also made me ponder why there is so much commonality among the different respondent groups. We learn about the justices and their work from the edited materials presented to us as students. So the field has been focused for us by the editors of the cases and materials which often serve as the first lesson about the Court and its work. There are few opportunities to learn about Gabriel Duvall or Thomas Todd. Given the limited set of materials, it would be interesting to assay which justices are at the bottom of the heap. Frank Easterbrook and David Currie engaged in this badenage some years ago for the University of Chicago Law Review when they debated who was the most insignificant justice.

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Bradley s findings are open to challenge. It would be unwarranted to generalize from his data. Despite this shortcoming, the notion of greatness on the Court does encourage playful and serious speculation.

Some of the essays are praiseworthy. Let me single out the ones by Kenneth Holland (on Roger B. Taney) and Linda C.A. Przybyszewski (on John Marshall Harlan I). I found these papers especially insightful and provocative. It was refreshing to view Taney as the first supreme activist, justifying his place in the pantheon of great justices. The contrast between Harlan s personal life and the moral positions he expounded from the bench gave me new understanding into Harlan s character.

I should add that there is much to forget in this volume. It will become apparent to readers as they glaze over arguments and evidence they have seen before. The collection also suffers from a fair share of poor copyediting.