Tuesday, February 21, 2023
Best American judges of the 20th century?
The earlier poll got nearly 200 responses, though since Professor Kerr (Berkeley) linked to it from his popular Twitter account, the responses probably came from more than just the regular blog readers. Of the write-ins (some of whom were not eligible, like Roger Taney [!]), the only one that got traction, rightly so, was Robert Jackson, who should have been on the original list. In any case, here are the top 15 from the poll:
|1. Louis Brandeis (Condorcet winner: wins contests with all other choices)|
|2. Learned Hand loses to Louis Brandeis by 54–51|
|3. Benjamin Cardozo loses to Louis Brandeis by 59–45, loses to Learned Hand by 57–54|
|4. Oliver Wendell Holmes, Jr. loses to Louis Brandeis by 55–47, loses to Benjamin Cardozo by 60–52|
|5. William Brennan loses to Louis Brandeis by 57–45, loses to Oliver Wendell Holmes, Jr. by 52–49|
|6. Henry Friendly loses to Louis Brandeis by 53–33, loses to William Brennan by 48–37|
|7. Thurgood Marshall loses to Louis Brandeis by 60–32, loses to Henry Friendly by 42–33|
|8. Earl Warren loses to Louis Brandeis by 52–39, loses to Thurgood Marshall by 48–41|
|9. John Marshall Harlan II loses to Louis Brandeis by 51–23, loses to Henry Friendly by 39–29|
|10. Richard Posner loses to Louis Brandeis by 60–36, loses to John Marshall Harlan II by 45–31|
|11. Ruth Bader Ginsburg loses to Louis Brandeis by 68–28, loses to Richard Posner by 50–39|
|12. Hugo Black loses to Louis Brandeis by 58–32, loses to Richard Posner by 47–41|
|13. Roger Traynor loses to Louis Brandeis by 40–20, loses to Hugo Black by 33–25|
|14. Robert Jackson (write-in) loses to Louis Brandeis by 51–36, loses to Roger Traynor by 35–29|
|15. Felix Frankfurter loses to Louis Brandeis by 64–24, loses to Robert Jackson (write-in) by 45–34|
I suspect politics dominated quality in some of these results, but at least a lot of clearly skilled jurists made the list. I was surprised Brandeis came out on top, rather than Hand or Cardozo, but so it goes with online polls! Thoughts from readers welcome; submit your comment only once, it may take awhile to appear.
I've never met anyone of any political persuasion who thought highly of those justices. Taney was a write-in, but was obviously not eligible. If people can't read the instructions, I can't do much about that.
Posted by: Brian Leiter | Feb 22, 2023 1:14:11 PM
How about 5th Circuit Judge John Minor Wisdom?
BL COMMENT: He was included in the poll, but did not make the top 15.
Posted by: JOEL WM FRIEDMAN | Feb 23, 2023 8:40:45 AM
To Joel--I ranked JMW 2nd (after Frank Johnson, & just ahead of Tuttle!). I'm a leftie, but neither EW nor TM made my top 30.
Posted by: Dave Garrow | Feb 24, 2023 1:54:23 PM
Roger B. Taney (d. 1864) seemed to have been included, but not one of the Four Horsemen was on (or addable to) the list.
Posted by: Butler McReynolds | Feb 22, 2023 8:11:51 AM