"The Greatest Justices" List
tgrey at LAW.STANFORD.EDU
Wed Mar 7 10:50:37 PST 2001
>>On the assumption that we have to ditch 6 people from this list, I would
>>suggest the following:
>William Rehnquist: A tougher excision. He's undoubtedly had an impact in
>moving the Court rightward, but, surely, not because of the intellectual
>force of most of his opinions. Even his admirers find him somewhat
>slipshod. I suspect there's more intellectual force in Thomas's opinions
>than there is in Rehnquist's.
>I certainly don't think that there's anyone not named on the list who is
>plausible candidate to replace the remaining names.
I teach a course called Modern American Legal Thought, which concludes with
a set of readings on the tendency I call Neo-formalism. This contains
writings by the patron saint, Friedrich von Hayek, by Charles Fried, and by
our own Michael Paulsen. But the centerpiece is "The Rule of Law is a Law
of Rules" by Antonin Scalia, and I've taken for granted that he is the
intellectual (better, intellectual/rhetorical) leader of this school of
thought in this country.
As a justice of the Supreme Court he has had remarkable influence on the
Court's overall work as well -- an article by Tom Merrill shows how he has
(single-handedly, before being joined by Justice Thomas) virtually driven
legislative history out of the opinions of the Court, and generally he has
led the textualist revolution in our law, while providing some of its
leading extrajudicial manifestos as well.
It's just a guess, but I'm conjecturing that the clearly deliberate
exclusion of Scalia from those who might even conceivably make the Big 15
(e.g. Sandy's reference to Thomas rather than him as the intellectual
leader of the right wing on the Court) has something to do with how
overwhelmingly annoying he is, capped by the single most infuriating
opinion by a Supreme Court justice in my experience, his opinion on the
issuance of the stay in Bush v. Gore.
-- Tom Grey Stanford Law School tgrey at law.stanford.edu
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