New thread: grading Justices and Opinions

[Michael McConnell]

I would be interested to learn why Cohen is profoundly correct, or even what
it really stands for. What is the legal principle? I cannot believe there is
no limit to the right to use offensive language in public places, but the
Harlan opinion does not suggest any limit. I am inclined to interpret the
opinion as resting on an unstated rationale: because the speech was so
directly political, and there was suspicion but not actual proof that the
authorities cracked down in part because of the political message, the Court
protected the speech. Obviously that is not the stated rationale.

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112


-----Original Message-----
From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
Sent: Monday, March 12, 2001 11:53 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: New thread: grading Justices and Opinions


I recently defended JM Harlan II's place on the greatest Supreme Court
Justices list, largely because of his Cohen opinion, which I think is a
classic (and by the way, I think the result is profoundly correct also).  I
would also nominate (apologies if someone else already did and I missed it)
Brennan's opinion in Texas v Johnson, one of the most crisp, elegant,
persuasive, and RIGHT First Amendment opinions in the Court's history.
Funny how often the "little" cases with the weird facts make for some of the
greatest opinions.

Rehnquist's dissent in Texas v Johnson is one of the worst First Amendment
opinions in the Court's history, I think.  He doesn't even attempt to
respond to the essence of Brennan's analysis (that govt is obviously
targeting ideological expression), and much of his opinion (quotations of
poetry glorifying the flag, etc) unwittingly undermines his weak central
argument that burning the flag is not particularly effective or coherent
expression.  Stevens's dissents in Johnson, and especially the next year in
Eichman, are on the other hand quite clever and do what good dissents should
do (even when ultimately unpersuasive, as I think Stevens was here):  point
out weaknesses in the majority's analysis and make you think much harder.
Rehnquist's dissent has always just strengthened my conviction that Brennan
and the majority were right.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Garrett Epps [mailto:gepps at LAW.UOREGON.EDU]
> Sent: Monday, March 12, 2001 10:29 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: New thread: grading Justices and Opinions
>
>
> Has anyone else nbominated COHEN V. CALIFORNIA?  For better or worse,
> contemporary American culture is unimaginable without this
> opinion, which,
> whatever one thinks of the result, is written beautifully.
>
> Judith Baer wrote:
>
> > My candidates:
> >
> > BEST: Jackson in BARNETTE, Douglas in TERMINIELLO; Ginsburg
> in U.S. V.
> > VIRGINIA.  All say what they have to say, clearly and eliquently.
> >
> > WORST: Day in HAMMER V. DAGENHART.  There are others like
> this, which
> > misread the Constitution.
> >
> > NOTABLY BAD: Holmes in SCHENCK; Black in KOREMATSU.  Each
> opinion (1)
> > announces a standard to be applied, then (2) fails to apply it.
> >
> >   The views expressed here "transcend the immediate
> results," to paraphrase
> > Herbert Wechsler.  However, I make no claim that ideology
> is absent from the
> > rating.
> >
> > Judy Baer
>
> --
> Garrett Epps
> Associate Professor of Law
> University of Oregon School of Law
> 1221 University of Oregon
> Eugene OR 97403
> (541) 346-1578
> FAX: (541) 346-1564
> Trouble sleeping?  Try my latest works:
> http://www.law.uoregon.edu/faculty/epps/default.html
>