


































Final Spring Law Journal Copy


Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

What Makes a Sound Supreme Court Justice?

Gonny Nir73

When asked, legal scholars, commentators, and avid Court watchers will
gleefully name the best Supreme Court justices to have served on the
bench. Even justices have their favorite predecessors, and numerous
academic lists have set out to rank justices' tenures on the bench. Yet
when asked what exactly makes a good justice, there seems to be a pause
among academics– individuals can seldom list the qualities that make for
a legendary tenure. There is a hole within the literature that identifies
which factors made the greatest Supreme Court justices the legal giants
they were. This article aims to fill that hole by identifying the qualities
that land justices on scholars’ “all-time” lists.

Author’s Foreword to the Article, May 3, 2022:
I wrote the following article over a three-week period in early

January, as the Court resumed its highly contentious 2021-22 term.
Against the backdrop of legal issues arising from controversial political
responses to the pandemic, and calls from Democratic Congresspeople
for the retirement of Justice Stephen Breyer– the Court’s activities and
rulings were beginning to be presented to citizens through a uniquely
political lens. I wrote the following article out of a fundamental
conviction: that the Court’s legitimacy hinges on the justice’s fulfillment
of their neutral, nonpolitical role in American life, as prescribed by the
Constitution. I, and hundreds of thousands of Americans, respect this
institution because through much of its contemporary history, it has done
its due diligence to remain apolitical, and above all fair, in its
decision-making.

On May 2nd, millions of Americans were alerted of the Court’s
likely ruling in Dobbs v. Jackson Women's Health Organization (2022).
As I read the draft opinion, written by Justice Samuel Alito, one clear
thought emerged in my mind, this ruling is unfair. Putting aside the
subject matter of Dobbs (the issue could be interstate commerce,
congressional delegation, or any mundane or contentious legal matter),
the notion that one branch of government is at liberty to uproot

73 Brandeis University Undergraduate, Class of 2025.

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longstanding, preexisting legal precedent is simply regarded by most
Americans as unfair. At a fundamental level –divorced from complex,
philosophical theories of ethics– most ordinary citizens believe that
justice is fairness. Often, this principle has been reproduced by the Court
in the form of granting some legal victories to conservatives, and some to
liberals. The public has regarded the Court as a fair institution primarily
for this reason. Most Americans believe that the Court has administered
justice in its cases by ruling along fair grounds. Even if a particular case
was decided against an individual's favor, they trust it was decided by the
justices along fair, legal grounds.

The likely outcome of Dobbs violates this rudimentary principle.
Justice Alito grounds his opinion on Justice Brett Kavanaugh’s five tests
for overruling precedent. The first of these tests concerns whether the
precedent case was based on reasoning that was clearly faulty. Justice
Alito makes few arguments to support the notion that either Roe v. Wade
(1973) or Planned Parenthood of Southeastern Pennsylvania v. Casey
(1992) was somehow “egregiously wrong.” In fact, most Americans will
not read Justice Alito’s reasoning behind why his opinion fulfills either
this or the remaining four tests for overruling precedent. Many will
instead focus on the notion that long standing precedent has just been
uprooted by a politically unchecked branch of government– and that this
action is unfair.

I wrote the following article charged with the precious, core belief
that the justices of the Supreme Court ought to act judicially, not
politically. Yet, regardless of the legal reasoning that Justice Alito
provides for his opinion in Dobbs, many members of the public will
likely –and properly– view the decision as an unfair one. Further, given
the political lens through which the Court has been portrayed in the past
year, the decision will likely be seen as a political one as well. This
decision jeopardizes the Court’s promise to administer justice fairly.
Recall that justice is evenhandedness to most Americans; it is
consistency– it is the notion that the rule of law at sundown will be the
same rule of law at sunrise. Regrettably, the sun may well have gone
down on our right to expect the Supreme Court to act in its tradition of
fairness.

Introduction

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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Supreme Court nominations have become some of the most
visibly partisan votes on the Senate floor. Justice Samuel Alito’s
confirmation in 2005 set the precedent that voting along party lines
would be the new twenty-first century normal when a nominee testifies
before the Senate Judiciary Committee.74 To illustrate the severity of
political polarization in the nomination process, one needs to look no
further than the lineage of Justice Neil M. Gorsuch’s seat.

In 1986, President Ronald Reagan nominated then-judge for the
U.S. District Court for the District of Columbia, Antonin Scalia, to fill
the seat of Justice William H. Rehnquist, who was being promoted to
Chief Justice. In his own words, Scalia was, “...known at that time to be
in my political and social views, fairly conservative. But still, I was
known to be a good lawyer, an honest man.”75 Scalia was confirmed by
the Senate in a vote of 98-0. Thirty-one years later, Tenth Circuit Judge
Gorsuch was confirmed by a vote of 54-45.76 While some may be
inclined to disagree with Gorsuch’s personal views, the justice’s legal
qualifications are not up for debate.77 Gorsuch’s nomination followed the
contentious 2016 Republican blockage of the nomination of then-Chief
Judge of the U.S. Court of Appeals for the D.C. Circuit, Merrick Garland.
This stonewalling effort undoubtedly fanned the flames of partisan
division during the Gorsuch hearings. However, Gorsuch’s confirmation
vote has not been uniquely partisan in comparison to other nominations
in this millennium. Justices Alito, Roberts, Sotomayor, Kagan,

77 "Neil Gorsuch." Oyez. Gorsuch graduated Phi Beta Kappa from Columbia University
in 1988, Cum Laude from Harvard Law School in 1991, and went on to become an
Oxford Marshall Scholar, studying philosophical natural law in 1992 (completing the
two-year program in a year). Gorsuch went on to receive three prestigious clerkships
(two for Justices Byron White and Anthony Kennedy) and worked for well-regarded
law firms, the Justice Department, and the Colorado School of Law.

76“Supreme Court Nominations (1789-Present),” U.S. Senate: Supreme Court
Nominations (1789-Present), November 10, 2020.

75 Scalia, Constitutional Interpretation the Old Fashioned Way, 2005, 58:57.

74 “Supreme Court Nominations (1789-Present),” U.S. Senate: Supreme Court
Nominations (1789-Present), November 10, 2020. A historically savvy reader would
note that whilst confirmation votes along party lines have undeniably grown in
frequency in the 21st century, throughout the 19th century– when the Senate was a
much smaller chamber– votes to confirm nominees to the high bench would also
occasionally fall along partisan lines. To name a few, Justice Jeremiah Black received a
count of 25-26 in 1861, Justice Mathews Stanley received a count of 24-23 in 1881, and
Justice Lucius Lamar received a vote count of 32-28 in 1887. Ibid.

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Kavanaugh, Barrett, and Jackson have all seen bitter confirmation
proceedings.78

The Division of the Confirmation Hearings and the Importance of
Legal Expertise

The increased division in confirmation hearings can be attributed
to a number of factors. Perhaps the most likely explanation is that
Americans have come to comprehend the weight the judiciary carries in
deciding the trajectory of American culture through its settlement of
important legal disputes. However, the age of bitter partisan division
distorts how Americans evaluate nominees, creating a nomination
process that is deeply inefficient in determining the legal expertise of
nominees.79 For the objectives of this article, legal expertise can be
understood as a synthesization of strong judicial ethics, decisive
reasoning, and high legal fluency.80 Scholars have written about the
importance of other characteristics aside from legal expertise in
nominees, however, this article’s primary focus is to extrapolate which
qualities compose legal expertise.

Federalist No. 78, part of a series of influential essays titled The
Federalist Papers that argued for the ratification of the Constitution,
refers to the judiciary as the “least dangerous branch,” of government.81
Notwithstanding that judicial decisions have garnered the capacity to
dramatically shrink the power of the Executive, willpower of the Senate,
and change the cultural conversation among The People.82 Given this, it
is understandable that Court nominations have become so critically

82Amar, The Words that Made Us: America’s Constitutional Conversation, 1760-1840,
517-518.

81 Hamilton, Federalist No. 78, 378-385.

80 For the purposes of this article I define “legal expertise” as the characteristic of
mastering how to read various statutes and comprehending the historical significance of
laws at the time of enactment.

79 A strong argument could certainly be made that elected officials and Americans, alike,
have chosen to prioritize the likelihood of a nominee casting judgments that favor their
political ideology over a nominee’s legal expertise. Such an argument could indeed
reflect the reality of considerations that nominees are judged against. However, I will be
approaching the matter from the assumption that Americans want their elected officials
to confirm nominees that possess a high degree of legal fluency.

78 “Supreme Court Nominations (1789-Present),” U.S. Senate: Supreme Court
Nominations (1789-Present), November 10, 2020.

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important to Americans and their elected representatives. The Judiciary
has played a central role in the formation of American society; decisions
such as Brown v. Board of Education (1954) and Ledbetter v. Goodyear
(2006) have forced Americans to engage in critical constitutional
conversations regarding what America’s shared values are and how they
ought to be legislated.83 Thus, the nine unelected jurists who sit on the
nation’s highest bench should be studied and selected with the utmost
care by the American citizenry and their elected representatives.
Considerations of nominees should be made free from ideological
allegiances, and rather with heightened attention to a nominee's legal
expertise.

Since their establishment in 1916, the Supreme Court nomination
hearings gave elected representatives and Americans the opportunity to
gauge a nominee’s legal expertise. Nominees are selected by the
Executive and testify before Congress to determine their legal suitability
for the bench. If the nominee’s professional experience and testimony
before the Senate Judiciary Committee is up to par, they would be
confirmed and don a black robe, guaranteed by life tenure. Although
there certainly have been contentious historical nominees — our very
own Louis D. Brandeis endured bitter opposition from senators due to his
association with progressive reform in employment and business
practices — most nominees have been confirmed to the bench without
much controversy.84

The Cruciality of Judicial Independence
Consistent with the separation of powers principle enshrined in

the Constitution, alternative branches of government influencing the
actions of the judiciary has not only been a source of public outrage (i.e.,
the public outrage following the publicity of the events of President
Richard Nixon’s Saturday Night Massacre). In addition, justices have

84 Schwartz, Supreme Court Superstars: The Ten Greatest Justices, 93-157. Brandeis
wrote of the opposition to his confirmation “[t]he dominant reasons for the opposition ...
are that he is considered a radical and is a Jew."

83Brown forced Americans to reconcile that the separate but equal doctrine would never
truly be equal, thus closing the era of Jim Crow laws. While Ledbetter forced Americans
to converse about how equal pay for equal work should look like on legal paper,
eventually opening the door to a greater conversation about how pay discrimination
actually affects citizens in workforce.

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ordinarily resisted such pressure.85 Inherent in the responsibilities of the
judiciary is that justices are tasked with making decisions based on what
laws and prior precedent demands of them, rather than making decisions
based on their personal will or to fulfill political favors.

Justice Oliver Wendell Holmes exemplified judicial independence
particularly well preceding the earnestly awaited judgment of United
States v. Northern Securities (1904), in which Holmes joined the minority
of justices who voted in favor of Northern Securities. President Theodore
Roosevelt said of Holmes “I could carve out of a banana a judge with
more backbone than that!”86 This comment stemmed from Roosevelt’s
hope that nominating Holmes to the Court would secure votes in favor of
his Administration’s preferences. Similarly, President George H. W. Bush
was remarkably disappointed in Justice David H. Souter’s voting record,
wishing that his jurisprudence had mirrored that of Scalia’s.87 Justices
such as Holmes and Souter reinforce the notion that justices are not
merely “junior-varsity politicians,”88 furthering one political party’s
interests to both the American public and other governmental branches.

The Unpredictability of Justices and Why it Matters
Justices are simply unpredictable; a judge is subject to change

their legal opinion at any given time when a new case is brought before
them.89 The decisions of the Court must be objectively sound, not
subjectively good. In other words, decisions from the judiciary should be
grounded in reason derived from the language of law and statutes, rather
than rendered from a justice’s political preferences. The judicial branch
has earned the trust of the American people precisely because of the
nature of its decision making.90 By grounding its decisions in preexisting
law and explaining why it decides cases in favor of various parties
through opinion writing, the Judiciary is able to retain the trust of the
broader public.

90 Chemerinsky, The Supreme Court, Public Opinion, and the Role of the Academic
Commentator, 1999, 943-955. The nature of how this trust is garnered by the judiciary
will be explored further in section two of this paper.

89 Schwartz, Supreme Court Superstars: The Ten Greatest Justices, 144.
88 Breyer, Supreme Court Justice Stephen Breyer and Noah Feldman, 2015, 1:17:49.
87 Totenberg, Impact of Souter Retirement Examined, 2009.
86 Purdum, Presidents, Picking Justices, Can Have Backfires, 2005.
85 There are, of course, shameful and deeply troubling exemptions to this observation.

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If Americans and their representatives ever wish to separate
themselves from the bitter partisanship of Supreme Court confirmation
hearings, critical questions regarding what makes a sound justice ought to
be asked and answered. This article will begin by exploring what makes
an effective justice and how they contribute to the legitimacy of the
Supreme Court as an institution. Subsequently, it will move to outline the
factors that characterize a useful justice, identifying influential theories
and engaging with methodologies for classifying the effectiveness of a
justice. Following this section, the article will answer what makes a good
justice in hindsight. Finally, the article will conclude with how these
findings can aid Americans and their senators in understanding what
qualities to look for in the future by changing the content of confirmation
hearing questions so that the Supreme Court will continue to be graced
with justices of exceptional legal expertise.

The Effective Judge and their Contribution to the Legitimacy of the
Judiciary

Before identifying the qualities that have made historically
effective justices, it is helpful to first understand what qualities make a
sound judge. Former Baltimore County Circuit Court Judge, Dana M.
Levitz, wrote for the University of Baltimore’s School of Law Review
that a judge should have the capacity to know when they ought to recuse
themselves from a case, possess a high degree of legal fluency, and
deliver sound and decisive judgments.91 These qualities build on one
another to construct the foundations for sound and impartial reasoning.

Legal Fluency: Content and Consequences
In his 2021 Year-End Report on the Federal Judiciary, Chief

Justice John G. Roberts voiced significant ethical concerns regarding the
131 federal judges who failed to recuse themselves in 685 matters
involving companies in which they or their families owned some share of
stock between 2010 and 2018.92 Recusal from cases in which judges have
a personal, political, or financial stake is crucial to safeguard the public
trust in the judiciary. Parties that go before a judge should leave the
courtroom secure in the knowledge that their case was heard by an

92 Roberts, 2021 Year-End Report on the Federal Judiciary.
91 Levitz, So You Think You Want to Be a Judge, 2008, 57-72.

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impartial and legally competent expert of the law, regardless of if the case
was decided in their favor.93 The threshold of legal fluency that a judge
ought to possess is understood as the ethical judgment needed to identify
when it is appropriate to recuse oneself from a case where one might
have a personal, political, or financial stake in the decision. If a judge
fails to have the legal fluency to understand when to recuse themselves,
the legitimacy of the judiciary is in jeopardy. The legitimacy of an
institution is much easier to diminish than to build, thus, it is crucial that
all judges realize how their decisions affect the legitimacy of the legal
system as a whole.

Legal Fluency and Judicial Institutional Legitimacy
The judiciary builds its institutional legitimacy like any other

institution. Sociologist Max Weber’s three points of institutional
legitimacy are identified through tradition, (legal) rationality, and
affective ties.94 Dean Erwin Chemerinsky of the UC Berkeley School of
Law argues that the Supreme Court has gained its institutional legitimacy
by maintaining traditions such as oral arguments, conferences, and
opinion circulation.95 The public has grown accustomed to these
traditions which install a sense of thoroughness and sensibility to the
Court’s decision-making process. Chemerinsky goes on to explain that
because the Court bases its decision making in laws, precedent, and other
forms of legal scholarship, the public can conclude that their decisions
are reached from a position of rational reasoning even if a particular
decision on a matter is unpopular.96 Finally, the Court’s affective ties are
projected through the rest of society via governmental regulation,
lawmaking, and other bureaucratic operations.97 These institutional
customs are what have bestowed the judiciary with the highest amount of
trust among Americans out of the three branches of government.98

98 The University of Texas at Austin,Most Trusted Branch of Government, 2020.

97 Chemerinsky, The Supreme Court, Public Opinion, and The Role of an Academic
Commentator, 4.

96 Chemerinsky, The Supreme Court, Public Opinion, and The Role of an Academic
Commentator, 5.

95 Chemerinsky, The Supreme Court, Public Opinion, and The Role of an Academic
Commentator, 4.

94 Weber, The Three Types of Legitimate Rule, 1958, 1-11.
93 Levitz, So You Think You Want to Be a Judge, 12.

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The judiciary must work to uphold this level of trust if it wishes
to safeguard its institutional legitimacy. Thus, as hallmark figures of the
judiciary, judges carry the responsibility of reaching their decisions in
line with judicial customs. Without a reservoir of public trust in the
judiciary, the rule of law no longer carries significant weight in settling
disputes among parties which could land the country in a politically
contentious or violent place.99 The Chief Justice’s 2021 End-Year Report
suggests that he too has concerns regarding the judiciary’s capacity to
maintain its institutional legitimacy.100 An effective judge must realize
that they are part of a greater institutional body whose legitimacy is
directly contingent on the decisions that members of the judiciary
make.101

It is now appropriate to stress that this conclusion does not mean
that judges must alter the means of reaching their decisions. Judges and
their jurisprudence do not have to be tailored to what the public would
favor it to be.102 Judges are not tasked with pleasing the public, rather
they are tasked with resolving legal conflicts by means of honest and fair
reasoning. Honest and fair reasoning implies that judges recuse
themselves from a case when their personal, financial or political
interests are furthered by the outcome of a case. Furthermore, possessing
a high degree of legal fluency ensures that parties' grievances are
analyzed by an expert of law who can dictate exactly how the established
law applies to a case before them. Finally, the capacity to deliver sound
and decisive judgments ensures that decisions made by judges are
consistent with law and precedent, even in difficult circumstances where
cases are deeply complex. These qualities are absolutely essential for any
nominee being considered for a seat on the Supreme Court as justices are
faced with intricate cases which demand that these qualities are already
mastered by the nominee. This article will now shift from what makes an
effective judge to identifying what makes a useful justice by recognizing
two aims of a justice’s tenure and two methodologies tasked with
measuring how these aims make a justice useful to the greater legal
community.

102 Chemerinsky, The Supreme Court, Public Opinion, and The Role of an Academic
Commentator, 5.

101 Levitz, So You Think You Want to Be a Judge 13.
100 Roberts, 2021 Year-End Report on the Federal Judiciary, 3.
99 Levitsky & Ziblatt, How Democracies Die, 2018.

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What Makes a Useful Justice? Theories and Methodologies
Justices notably differ from lower court judges in that their

opinions traditionally carry more weight than those of lower court judges,
leading them to be more well known by the public and members of the
legal community.103 Legal commentators suggest that Justices who (1) act
as the intellectual epicenter of their respective court or (2) influence the
trajectory of American law past their tenure fulfill the central aims of a
justice’s tenure.104 Undoubtedly, significant overlap exists between these
two aims, and Justices, like all individuals within the workforce, have
multiple professional desires they wish to accomplish simultaneously.
Yet, most justice’s tenures are remembered by legal academics or the
greater public because one of these aims was emphasized by the justice’s
tenure more so than the other— this is accomplished through the justice’s
writing on the Court.

Motivation I: The Epicenter of a Legal Movement and the Subsequent
Role of the Law Review

Beginning with the first motivation, justices land themselves in
the intellectual epicenter of academic legal writing by developing robust
and unique legal theories which garner the respect of academics and legal
commentators.105 Justices develop robust legal theories because they are
deeply invested in the trajectory of the law as figures who determine it.
Justices spend their professional lives either employing the law to further
their understanding of how lawyers should interact with it in private and
public practice, or sketching out how they believe the law ought to be
interpreted in professorial tenures - among other legal occupations.106

106 “Tom Johnson Lectureship: Justice Neil Gorsuch.” The LBJ Foundation, 2019. Such
professional experience is often preceded by a judicial clerkship. Whilst speaking at the
LBJ Foundation, Justice Gorsuch remarked that law graduates ought to be attentive
when applying and choosing between clerkships because the first few mentors of a law
graduate have an enormous influence on how a lawyer will argue cases and how they
believe judges should interpret laws; Gorsuch, Neil.

105 Baum & Devins,Why The Supreme Court Cares About Elites, Not the American
People, 19.

104 Baum & Devins,Why The Supreme Court Cares About Elites, Not the American
People, 2010, 1516-1555.

103 Cross & Spriggs II, The Most Important (and Best) Supreme Court Opinions and
Justices, 2010, 409-474.

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Professional experience is consequential because it dictates how a justice
is likely to use the law to further their understanding of its role— such
professional experiences mold a justice’s legal philosophy.

Legal philosophy provides justices with a foundation upon which
they can further existing or carve out new, intricate legal theories. Legal
theories allow justices the opportunity to not only lead an intellectual
movement concerning how lawyers and judges utilize the law to further
various objectives but also to provoke intellectual discourse around these
legal theories. The principal audience of justices’ writing is professors
and law students. Hence, the yearning for academic dialogue about a
justice’s legal theory cannot be understated because justices write for this
community. Further, justices craft opinions with this audience in mind
because they care about how academic communities perceive them. A
justice’s tenure is more often remembered by the professors,
commentators, and other influential elites who publish legal writing
-often in the form of law review articles- or biographies about a justice’s
tenure on the Court. Thus, it is of little surprise that a justice’s authoring
style, which extrapolates their legal theory in various cases, would be
designed to garner the literary attention of such influential figures.

A contemporary example of this phenomenon is illustrated by
Justice Gorsuch’s tenure. Professor Noah Feldman of Harvard Law
School hypothesized that Gorsuch’s primary professional aim is to be
regarded as the new conservative intellectual of the Court, carrying the
torch of his direct predecessor, Scalia.107 Feldman wrote, “Gorsuch
decides cases a little differently from his colleagues… In every case…he
takes pains to shape a consistent judicial philosophy that defines the
conservative position.”108 Feldman further divulges that due to the strict
jurisprudence that Gorsuch is actively carving out, some of his decisions
have led to deeply conservative rulings, while others have led to
surprisingly liberal outcomes.109 This jurisprudence was displayed in
Gorsuch’s majority opinion in, Bostock vs. Clayton County, which
extended the Civil Rights Act’s ban on employment discrimination on the
basis of sex, protecting LGBTQ+ workers.110 Upon publication, this
opinion shocked both liberal and conservative legal writers; yet, when

110 Bostock v. Clayton County, 590 U.S. 17-1618, 2020.
109 Feldman, Neil Gorsuch Is Channeling the Ghost of Scalia, 2021.
108 Ibid.
107 Feldman, Neil Gorsuch Is Channeling the Ghost of Scalia, 2021.

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reading the opinion, it becomes clear that Gorsuch’s conclusions are
perfectly consistent with the legal theory he has spent his entire judicial
career carving out.

Gorsuch’s judgement in Bostock, which entirely depended on the
reading of the word “sex,” in Title VII protections which ban the
termination of employment on the basis of sex. Gorsuch wrote that “...an
employer who fired an individual for being homosexual or transgender
fires that person for traits or actions it would not have questioned in
members of a different sex.”111 His reading of the word, lodged in a
textualist interpretation of statutes, was entirely consistent with his long
standing legal philosophy that one ought to read legal words in their
original meaning. The decision garnered much attention from both liberal
and conservative legal writers, undoubtedly fulfilling Gorsuch’s desire to
provoke academic discourse regarding textualism and its outcomes.
Indeed, such discussion did come about as legal writers and
commentators published articles in blogs, journals, and eventually law
reviews citing the case and debating textualism and its use in judicial
decisions. The role of the law review ought to be highlighted as these
journals are not only prestigious publications that have influenced judges
historically, but they also provide an avenue that justices can use to
reflect on the influence of their legal theories.112

Law review articles provide justices with the opportunity to
consider how their legal theories are being received in the legal
community by reading what various law professors in influential legal
academies believe their legal theories can accomplish. Appearing in law
review papers and other legal publications suggests that a justice’s
jurisprudence is particularly influential in the trajectory of contemporary
law. Though it should be noted that attempting to quantify a justice’s
influence by merely counting how many times they appear in Law
Reviews may over-inflate their influence, particularly as time moves
forward.

Law Review-Inflation: a Caveat

112 Once again, our very own then-lawyer, Louis Brandeis’ collaborative article in the
1890 Harvard Law Review titled “The Right to Privacy,” essentially created the judicial
recognition of a right to privacy. The article altered the trajectory of the Fourth
Amendment cases from then on, as courts began recognizing the right in proceedings.

111 Bostock v. Clayton County, 590 U.S. 17-1618, 2020, 6.

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So-called law review-inflation has three leading causes, the first
being that preceding the 1870’s the publication of law reviews hadn’t
been established in American law schools.113 Law review features tend to
focus on contemporary issues, thus, some influential justices, like Justice
James Wilson, are frequently underwritten about. Secondly, some justices
may have lived distinguishable lives, however, their tenure on the bench
may not be nearly as memorable. Chief Justice John Jay was one of
America’s founding fathers, a member of the commission initiating the
Treaty of Paris, and a co-author of the Federalist Papers— just to name a
few of his many notable achievements.114 Yet, Jay’s six year-tenure
serving as the nation’s first Chief Justice was remarkably dull.115

Finally, some justices exert their influence on American law when
they are serving as judges on a lower court, rather than as a justice on the
U.S. Supreme Court. Justice Benjamin N. Cardozo is perhaps the most
conventional example of this phenomenon. Like Jay, Cardozo only
served on the U.S. Supreme Court for six years.116 Consequently,
Cardozo couldn’t deliver nearly as many landmark opinions as his
longer-serving colleagues. Yet, Cardozo’s fifteen-year tenure serving as
an Associate and as the Chief Judge of the New York Court of Appeals
was where his landmark opinions were delivered.117 Therefore, whilst law
review features can be a sound indicator for measuring the influence of a
justice’s tenure, one should refrain from solely relying on features after
considering the caveats mentioned above.

Motivation II: Determining the Trajectory of American Law
Moving to the second primary aim of a justice’s tenure, the desire

to shape the trajectory of American law, D.C. Circuit Judge Montgomery
N. Kosma developed a method derived from economic theory to measure
the influence of a Supreme Court justice by counting the number of
citations to a justice’s opinion found in lower court opinions.118 Kosma

118 Kosma,Measuring the Influence of Supreme Court Justices, 1998, 333-372.
117 Ibid.
116 “Benjamin N. Cardozo.” Oyez.
115 Ibid.

114 Amar, The Words that Made Us: America’s Constitutional Conversation, 1760-1840,
2021.

113 Closen & Dzielak, The History and Influence of the Law Review Institution, 2015,
1-45.

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reasons that if a justice provides an opinion that is frequently cited in
lower court opinions, their jurisprudence was sound enough to be utilized
in future cases.119 Kosma addresses the issue of citation inflation by
considering that older opinions are less often cited than contemporary
ones.120 Early in the republic’s history, the Court released fewer opinions
than it does today, however, many of those early opinions, such as
Marbury v. Madison (1803) or McColloch v. Maryland (1819), set what is
now acknowledged as super precedent.121 Although judges no longer
utilize super precedent, such cases are undoubtedly some of the most
influential opinions authored in American history.122 Kosma compensates
for infrequent citation of older cases by reasoning that an opinion from
1900 which has been cited ten times is equivalent in terms of influence to
an opinion from 1960 that has been cited 18 times in lower court
opinions.123

Aside from citation inflation and the underrepresentation of super
precedent, Kosma does address the possibility of the overrepresentation
of a Chief Justice’s significance in his citation-count method. Kosma
underscores that because Chiefs assign the opinions of cases whenever
they are in the majority or minority of a case, the Chief has the
opportunity to assign themselves a landmark case to author, thereby over
inflating their own significance on the Court.124 As a result, Kosma
cleverly remarks, “...influence may not be perfectly correlated with
talent.”125 On this point, it should also be noted that citation-count
excludes dissents. Therefore, a truly great and wise dissenter’s influence,
such as that of Justice Ginsburg, may be understated in a study that
centralizes solely on citation count.126 As was the case with law review

126 Kosma,Measuring the Influence of Supreme Court Justices, 1998, 6.
125 Ibid.
124 Kosma,Measuring the Influence of Supreme Court Justices, 1998, 8.
123 Kosma,Measuring the Influence of Supreme Court Justices, 1998, 15.
122 Ibid.

121 For the purposes of this article, I define “super precedent,” as decisions that have
gone unchallenged for such a great amount of time that contemporary opinions are
written by judges excluding a citation to the case because judges assume that all
individuals reading the case regard the citation as a precondition for the judgment
rendered (precedent laid down by cases such as Marbury v. Madison would fall under
such an understanding of super precedent).

120 Kosma,Measuring the Influence of Supreme Court Justices, 1998, 7.
119 Kosma,Measuring the Influence of Supreme Court Justices, 1998, 6.

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features, a more holistic method is required than purely citation count to
capture the accurate influence of a justice.

In addition, Kosma points to a justice’s jurisprudence as an
indicator of influence. As mentioned earlier, a justice's capacity to
develop or utilize a judicial philosophy can earn them high respect among
influential legal writers, but it can also cement their influence on the
trajectory of American law over time.127 Judicial philosophies such as
textualism, pragmatism, and originalism are theories that have been
adopted and modified to such a degree by hundreds of judges across the
country that attorneys often arrange their arguments in a way that caters
to these schools of thought128 Kosma asserts the longevity of
jurisprudence which justices expand over time will often determine that
justice’s influence on the direction American law proceeds in.129

In understanding what makes a useful justice it is favorable to
take a measured approach. Firstly, when evaluating justices it is crucial to
understand which of the two motivations: either to act as the intellectual
epicenter of their respective court or to influence the trajectory of
American law past their tenure a justice prioritizes during their tenure. If
a justice wishes to be regarded as the epicenter of a legal movement, a
count of written features in law reviews may reflect how their opinions
are being perceived by influential legal elites. On the other hand, if a
justice is primarily concerned with determining the trajectory of
American law in the coming generations, perhaps calculating the number
of lower court citations of their writing can reveal their influence.
Secondly, it is important to note that there are caveats to both methods, as
they can inflate the significance of some justices or their opinions whilst
neglecting the influence of others. Hence, taking a measured approach
that combines these measures or simply taking into account other factors
such as Court culture, legal biographies, and other historical writings can

129 Kosma,Measuring the Influence of Supreme Court Justices, 1998, 5.

128 Kagan, The 2015 Scalia Lecture| A Dialogue with Justice Elena Kagan on the
Reading of Statutes, 2015, 1:01:12.When Justice Scalia was serving on the Bench and
an attorney was citing legislative history in their brief or in a footnote, they would often
begin the sentence with a string of words to the tune of “for those who care for such
matters.” Due to Scalia’s famous distaste for legislative history, he would know to skip
over that section of the brief.

127 Kosma,Measuring the Influence of Supreme Court Justices, 1998, 3.

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aid in understanding what has made a justice particularly useful during or
after their tenure.

The Sound Justice: Maximalists, Minimalists, and Other Qualities
Thus far, this article has identified what makes a sound judge and

has explored various theories utilized by legal scholars whom justices
often hope will commemorate their influence on American law. Now, this
article will engage in identifying which qualities have made America’s
greatest jurists the legal giants they were. Writing for the Tulsa Law
Review, distinguished law professor Bernard Schwartz asserts that there
is no mathematical formula that can select infallible variables which
determine what makes a fine justice. There will always be some degree of
subjectivity in determining which justices were truly remarkable jurists.
Yet certain factors such as those discussed above– legal fluency, judicial
independence, and influential writing– stipulate a basic criteria that will
be expanded upon in the following section to determine what makes a
sound justice.

Maximalists and Minimalists
In understanding what makes justices truly outstanding, one must

distinguish between the two kinds of jurists. Writing for the Emory Law
Review, professors Frank B. Cross and James F. Spriggs II identified
judges as either maximalists or minimalists. Judicial maximalists
customarily follow a strong jurisprudence that favors ruling what the law
is in one sweeping gesture.130 An example of a judicial maximalist on the
contemporary Court is Justice Clarence Thomas, a staunch originalist,
who favors declaring the law emphatically rather than incrementally.131
On the other hand, judicial minimalists, akin to Justice Stephen Breyer,
favor making small, incremental changes to the law that eventually pave
the way for larger changes over time.132 A considerable number of
academic lists have ranked the best Supreme Court justices of all time;
three justices consistently appear: Chief Justice John Marshall, and

132 Ibid.

131 Cross & Spriggs II, The Most Important (and Best) Supreme Court Opinions and
Justices, 86.

130 Cross & Spriggs II, The Most Important (and Best) Supreme Court Opinions and
Justices, 86.

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Justices Joseph Story and Oliver Wendell Holmes.133 Marshall and his
protégé, Story, were judicial maximalists, favoring broader decisions that
laid down a solid foundation for the law of the land.134 Yet, Holmes was a
judicial minimalist, preferring to further the law in small, gradual
increments.135 Hence, a justice can be classified as a judicial minimalist
or maximalist, and still be a sound and influential jurist.

The Value of Judicial Instrumentalism
In reading the various explanations for why law professors select

certain justices to appear on their lists of greatest Supreme Court jurists,
one clear theme comes up time and again: the common thread linking
justices who were minimalists and maximalists is the capacity to
understand that the law declared by the Court today will serve a future
society, whose culture and values will be different from the justices’
contemporary culture.136 Six out of the ten Justices that appeared in
Schwartz’s, “Supreme Court Superstars: The Ten Greatest Justices,” were
described as “result-oriented”.137 The value of judicial instrumentalism
cannot be understated in examining the greatness of the justices who
truly altered the trajectory of American law.138 Consequently, the greatest
justices understood the law as a governing tool used each and every day
across American society, and American society characteristically strives
to progress forward with the benefit of shared experience across diverse
groups.139 The law has to survive and evolve alongside society, and an
instrumentalist perspective of how the law interacts with its society has

139 Lynd, Knowledge for What? The Place of Social Science in American Culture, 1939.

138 For the purposes of this article, judicial instrumentalism can be understood as a
jurisprudence that places a heavier emphasis on the consequences a law will serve in
society, rather than simply consulting the legislative language used in the statute when
deciding the outcome of cases.

137 Schwartz, Supreme Court Superstars: The Ten Greatest Justices, 2.
136 Schwartz, Supreme Court Superstars: The Ten Greatest Justices, 6.
135 Schwartz, Supreme Court Superstars: The Ten Greatest Justices, 25.

134 Schwartz, Supreme Court Superstars: The Ten Greatest Justices. There is a strong
argument to be made that Marshall and Story had to be judicial maximalists to settle
what the law of the early republic ought to have been. Afterall, it is rather difficult to
govern a constitutional republic when clear legal boundaries aren’t set. Thus, hindsight
offers a unique perspective, in that it almost seems obvious that the two most influential
early figures on the Court were judicial maximalists.

133 Hambleton, The All-Time All-Star All-Era Supreme Court, 1983, 462-465.

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undoubtedly contributed to landing the most celebrated justices on
academic lists.

Secondly, it is worth mentioning that most justices who have
landed on “all-time” roundups have not had a strong jurisprudence.
Rather, these justices had strong legal opinions (or, one might say,
judicial principles) that were universal among their decision-making.140
The distinction between the two aforementioned aims of a justice’s tenure
is particularly noticeable among this group of justices. During their
tenures on the bench, these justices placed greater emphasis on the
trajectory of American law than on the probability of being at the
intellectual center of legal writing. Some of the greatest justices of the
twentieth century, such as Chief Justices Charles Evans Hughes and Earl
Warren, as well as Justices Hugo Black and William J. Brennan, are often
commemorated as justices who ruled on the grounds of judicial
principles, rather than from a robust legal theory that they carved out.141

The Merits of Moderatism
Trends in the last century suggest that the negotiation abilities of a

justice have become an indicator of judicial excellence.142 Particularly in
times of deep ideological disagreement between members of the Court,
the ability to garner a majority of votes on a case has landed some
justices in particularly high respects with academics and the greater
public, alike. For example, Justice Sandra Day O’Connor’s ability to pull
one of her more conservative colleagues to form a majority in cases
landed her in such a prominent position on the Rehnquist Court that it
was colloquially rebranded the O’Connor Court.143 Although some
scholars have questioned the importance of swing justices, most have
conceded that the ability to negotiate with other ideologically minded

143 Biskupic, Sandra Day O’Connor: How the First Woman on the Supreme Court
Became Its Most influential Justice, 2005.

142 Hambleton, The All-Time All-Star All-Era Supreme Court, 4.

141 Schwartz, Supreme Court Superstars: The Ten Greatest Justices, 51. it will certainly
be interesting to see how Scalia will be remembered by future academics because he,
unlike the four previously-mentioned justices, did have a strong jurisprudence.
However, he undeniably transformed how law (specifically statues) ought to be
interpreted by judges and lawyers, alike.

140 Hambleton, The All-Time All-Star All-Era Supreme Court, 3.

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justices has historically been a central factor in many of the so-called
greatest justices.144, 145

How to Select Sound Justices
This article has highlighted the importance of strong judicial

ethics, decisive reasoning, and high legal fluency in judges; and judicial
instrumentalism, strong principles, and effective negotiating skills as
qualities which make for legendary justices. However, what has yet to be
answered is how exactly Americans and their senators can evaluate
nominees during the confirmation hearings so that they can make an
informed decision regarding which nominees have earned the honor of
serving on the highest bench.

The factors that former Judge Levitz listed which make an
effective judge, such as possessing a high degree of legal fluency, having
the capability to make decisive judgments, and understanding when to
recuse oneself from a case, are relatively easy to identify in a nominee.146
However, qualities such as judicial instrumentalism are less identifiable,
especially if a nominee has no prior judicial background. Furthermore, as
was highlighted throughout this paper, nominees are often subject to
change their legal opinions over time. Thus, changing the content of the
questions senators ask is the key to unlocking the legal suitability of a
nominee to the bench.

In a lecture given at Rice University, Chief Justice Roberts was
asked how he believed the nomination hearings should be altered.
Roberts suggested that senators ask nominees about their judicial
philosophy and what they hope to accomplish on the bench during their
tenure.147 Although legal opinions are inclined to change, it is rather rare
for a justice’s jurisprudence to change on its head. By questioning a
nominee’s judicial philosophy, Americans can gain an accurate sense of

147 Roberts, Centennial Lecture Series: Chief Justice John Roberts Speaks at Rice
University, 2012, 1:02:07.

146 Levitz, So You Think You Want to Be a Judge, 15.
145 Enns & Wohlfarth, The Swing Justice, 2013, 1089-1107.

144 A justice who traditionally provides the tie-breaking vote in decisions, but whose
ideologically-inconsistent record makes predicting their vote on a given case tricky.
Justice Sandra Day O’Connor was regarded as the swing vote in the Rehnquist Court,
and was succeeded by Justice Anthony Kennedy in the Roberts Court.

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the nominee's judicial principles which tend to remain steady over a
justice’s tenure.

How a nominee answers a question regarding what they wish to
accomplish on the Court can actually reveal what the nominee’s
long-term goals are for their tenure. In answering a question that instructs
a nominee to answer how they believe the law should be interpreted by
judges, a nominee may reveal their desire to shape the trajectory of law in
a new direction. This kind of an answer may reveal a nominee’s wish to
instate the use of a legal theory in the coming legal generations. This kind
of answer suggests a desire to be at the center of academic legal
scholarship, as it clearly shows a nominee has an existing legal theory
they wish to spread in legal circles. Alternatively, a question probing a
nominee to state which justices they admire most can reveal a nominee’s
possible inclination for instrumentalist thinking if they list justices who
ruled along strong judicial principles, such as Story or Warren. In
contrast, if they list examples of justices who are largely remembered for
furthering strong judicial theories such as Holmes or Scalia, senators and
citizens can infer that such a nominee is likely to be concerned with
developing or furthering a legal theory.

Regardless of how the nominee answers these new questions that
senators ask, Americans can gain a more reliable sense of what kind of
justice a nominee will make if they are indeed confirmed to the Bench. In
summation, the nomination process will regain a more accurate and
useful metric for determining the legal suitability of nominees intending
to be confirmed for a seat on the United States Supreme Court.

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