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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. I'm feeling summer of Scotsy.
J. Aughenbaugh: I'm feeling overrated.
N. Rodgers: You're not overrated. In many ways, you're underrated.
J. Aughenbaugh: Well, that's really sad.
N. Rodgers: I think it also depends on how you define overrated.
J. Aughenbaugh: Because for one person, I could be underrated. But for some of my students, I might be overrated.
N. Rodgers: Overrated is in the eye of the beholder, I suppose.
J. Aughenbaugh: Well, there you go. In listeners. If you're not picking up on a rather opaque discussion of overrated versus underrated, what we're going to be looking at today, is overrated Supreme Court justices. Part of the difficulty with this conversation, Nia, as you just alluded to, is what is a good quality Supreme Court justice? That may depend on how you define, what is a good quality Supreme Court justice?
N. Rodgers: We're going to define it in a very specific way because it is not about whether they ruled with you or against you on a particular case, although that is the temptation, right is to say, that person ruled against something that I believe in they're overrated. That's not how that's not how we're defining. Today, we're defining overrated in terms of the impact that they have on the court and the court's jurisprudence going forward. Really we're talking about impact factor.
J. Aughenbaugh: Yes.
N. Rodgers: When we're talking in this instance about overrated, that they have an outsized reputation for impact that they may or may not able to back up. Now, we should note for the record. These are Aughie and Nia's opinions.
J. Aughenbaugh: Yes.
N. Rodgers: Don't sue us. Estes of the people we're about to be crabby about, or in the case of people who are living, who are about to be crabby. It's not personal. We're not talking about you personally. We're not slamming you as individuals. We are just simply saying we have thoughts and feelings about people who may have an outsized reputation.
N. Rodgers: Later on in the episode, we'll touch upon perhaps some other variables that could be used to evaluate whether or not a justice is underrated or overrated. But if we think about influence on the court's jurisprudence, and maybe shifting or moving the court in a new or significant direction. One of the things that became really apparent and has been apparent for me for years, because I've been studying and teaching the courts and the justices for decades. Is that some of the best known Supreme Court justices, Nia, are oftentimes overrated because they don't really have or haven't had much of an impact on the court's jurisprudence. I'm going to start off with a really well known Supreme Court justice, Oliver Wendell Holmes. In many ways, Holmes' reputation for being a great Supreme Court of justice is based on the fact that he had a whole bunch of clerks and law school professors who thought he was great. But if you look at his rulings, he was, in many ways, not a very good Supreme Court justice. I'll just give you one example. At the time he was a justice, and he served on the Supreme Court starting in the late 1800s almost until 1930. Progressives loved him, because he would uphold economic regulations of the then new industrial economy. Progressives like that. They wanted the government to regulate monopolies and trusts, and all other bad behavior that arose by the Robber Barons, by these wealthy capitalists, et cetera. But because he was willing to defer to the legislature, that also meant that he would defer to them when the legislature would pass laws that were, abridged or harmed civil rights and civil liberties. He wrote the court's majority opinion in Buck versus Bell that allowed The sterilization of Coded Court crazy or imbecilic people.
N. Rodgers: Is that the three generations of imbeciles is enough? Is that the famous quote?
J. Aughenbaugh: Yes. That the famous quote.
N. Rodgers: That case was brought by a person who had been sterilized against their will?
J. Aughenbaugh: That's right. Here in the Commonwealth of Virginia.
N. Rodgers: That happened a fair bit where other people could declare you unfit. He allowed that to go forward.
N. Rodgers: I mean, at one point, at that time, we had 40 states that allowed people to be sterilized because they possessed unwanted or undesirable, genetics. Being coded quote an imbecile to being a frequent criminal violator, an alcoholic, a drug addict, et cetera. He wrote the court's majority opinion. He upheld opinion laws which basically allowed people of color to be used in forced labor systems. He upheld egregious laws restricting freedom of speech during the First Amendment, because his view was, the people's elected representatives represented the will of the people, and it wasn't his job to go ahead and save the people from themselves.
N. Rodgers: He had some influence in his time. His stuff has been overturned and that sort of thing.
J. Aughenbaugh: Yes.
N. Rodgers: He's a very different example from Thurgood Marshall, who is in your notes. Thurgood Marshall, and if I may pontificate for a moment, was a fantastic advocate. When he pre being on the Supreme Court, the NWACP, would not have been what they were without Thurgood Marshall. He was a brilliant advocate for civil rights and civil liberties. The Civil Rights movement would not have succeeded without him. I truly believe that. I believe it doesn't matter how like charismatic doctor King was or other leaders, they needed his mind. They needed Thurgood Marshall's mind to make all the legal stuff happen. He was brilliant. But then he gets on the court, and he's good, but he's not earth shatteringly Do I mean, like, his gift was not in his jurisprudence, his gift was in his advocacy?
N. Rodgers: Yes. He was very skilled, in a courtroom when he was advocating on behalf of people of color. He could read a jury, he could read a judge. He almost single handedly came up with the strategy of going to court to get legal and constitutional change instead of relying upon state legislatures to change the laws. But as a judge, you're not an advocate anymore. You're supposed to rule dispassionately and try to persuade your colleagues with your writings. That's not where he was great.
N. Rodgers: Well, and then the court shifted underneath him as well shifted from being a place where a liberal could make a change. To then to moderate to then to conservative. But at that point, he's a lone voice anyway.
N. Rodgers: Yes. Because he was not good at the politics, because, one of the justices he served with Justice William Brennan. William Brennan was great at getting five votes on the court to get a ruling. Even if that meant that you might have to make some compromises so you could get the ruling that you wanted. Thurgood Marshall wasn't good at that, Where Thurgood Marshall was really good was in the court room as a litigator. But we all speak of him as this great just ice. But I'm like, He wasn't a great justice. He was a great lawyer. Again, this is not to go ahead and denigrate his impact or influence on American law.
N. Rodgers: I mean, we have the Civil Rights Act.
J. Aughenbaugh: Of 1964.
N. Rodgers: Because of his ability in the courtroom to say, "This is not fair. This is fundamentally, ethically unfair".
J. Aughenbaugh: By make the legal and make the sobs legal argument. It violates the equal protection clause of the 14th Amendment. I mean, likewise, you could also say that about Ruth Bader Ginsburg. We don't get the Women's Rights Movement of the 1970s, without the legal arguments Ruth Bader Ginsburg made as the director of the Women's Rights Project for the ACLU.
J. Aughenbaugh: But on the Supreme Court,
N. Rodgers: She's not particularly persuasive.
J. Aughenbaugh: Well, one, again, the court had shifted from being dominated by liberals to being dominated by conservatives, so she was frequently in the discent. But she didn't like to compromise, which meant she probably lost votes simply because she didn't want to compromise. Again, you don't have to compromise as a litigator. If anything, you want a litigator who
N. Rodgers: You want no compromise. That I will die in this trench.
J. Aughenbaugh: You want that from your attorney. But as a justice
N. Rodgers: But you don't want that from your judge. You want that from your attorney, but not from your judge.
J. Aughenbaugh: Those are just a few examples of particularly with Thurgood Marshall and Ruth Bader Ginsburg. Their influence on American law is unquestioned. It's just that they weren't necessarily, in my estimation, great justices. Which again, doesn't mean
N. Rodgers: Their effect on the law was prior to being on the Supreme Court.
J. Aughenbaugh: Now, there's an entire position on the Supreme Court that I think gets overrated, and that's what position?
N. Rodgers: The Chief Justice.
J. Aughenbaugh: Yeah, right?
N. Rodgers: I think it's overrated for the very reason you put in your notes, which is that the courts are usually named after them.
J. Aughenbaugh: That's right.
N. Rodgers: The Warren Court. The Burger Court, the Roberts Court.
J. Aughenbaugh: Yes.
N. Rodgers: And that seems to give them outsized importance when, in fact, many of them, I'm not saying they don't. First of all, we should back up and say, all of these people contributed on the court. We're not saying they didn't contribute. We're saying that their influence is not the same as a person whose influence on the court really was their influence on the court, and how the court did things. For instance, Scalia, whether you like Scalia or don't like Scalia, Scalia brought textualism to a whole generation of people who now believe that that's how you should read the Constitution.
J. Aughenbaugh: Yes.
N. Rodgers: The text matters, the words actually matter.
J. Aughenbaugh: That's right.
N. Rodgers: Not what you think they might have meant, but what they actually wrote down. That's a pretty influential shift in how the court works. Whereas what we're talking about are people who didn't do things like that, and I think you're right that the Chief Justices, just because they get a court named after them doesn't mean that they did the work.
J. Aughenbaugh: The prime example here that I'm thinking about is Chief Justice Earl Warren. We know the Warren Court, because he served from 1953 until 1969. He was the Chief Justice, and we know the Warren Court because you get Brown versus Board of Education, you get Gideon versus Wayne Wright, Miranda versus Arizona, Baker versus Carr, all of these landmark civil rights, criminal rights decisions, but by almost every single account and every biography I've read of him, scholars, or intellectually, he was not the moving force on his court. He was a great leader.
N. Rodgers: He was great organizer.
J. Aughenbaugh: He was able to get these really smart justices to coalesce around some groundbreaking Supreme Court decisions, but intellectually, the justice we should give credit for is Associate Justice William Brennan, who either wrote these influential decisions or okay, was known to edit Chief Justice Warren's majority opinions in these groundbreaking cases.
N. Rodgers: What Warren was was a good administrator.
J. Aughenbaugh: Sure.
N. Rodgers: But that doesn't make you a great justice.
J. Aughenbaugh: Justice.
N. Rodgers: Yet it's known as the Warren Court, not as the Brennan Court.
J. Aughenbaugh: That's right. Or to give you another example, the Hughes Court led by Chief Justice Charles Evan Hughes.
N. Rodgers: Tell me when was that?
J. Aughenbaugh: The 1930s, early 1940s.
N. Rodgers: Roosevelt, I'm going to put 800 people on the court here.
J. Aughenbaugh: That's right.
N. Rodgers: I'll show you Supreme Court. I'll put everybody in the United States on the Supreme Court, and we'll see what happens.
J. Aughenbaugh: Now, today, almost every single scholar, concludes that Chief Justice Hughes outfox the President because Roosevelt's court packing plan never even gets voted on by the Senate.
N. Rodgers: That's because they maneuvered. He maneuvered that.
J. Aughenbaugh: Yes.
N. Rodgers: To not happen.
J. Aughenbaugh: He infamously gave an affidavit saying, Well, the president says, the reason why he wants to add a whole bunch of new judges is that federal judges are old and they can't get their work done. While the current Supreme Court is not only current with its docket, it's actually ahead. So I guess we're not old and not getting our work done.
N. Rodgers: Parenthesis.
J. Aughenbaugh: But we wouldn't have had this battle between the president and the federal courts if the court wasn't so badly divided and resistant to change in the first place.
N. Rodgers: I see what you're saying. So if he was actually affected, there would not have been room for Roosevelt to drive his plan.
J. Aughenbaugh: Yeah.
N. Rodgers: That's a fair point.
J. Aughenbaugh: Again, a number of scholars have just, Hughes gets a lot of credit for being this great chief justice. All he did was he protected the court's institutional reputation, but its reputation was taking a hit while he was chief justice.
N. Rodgers: That would make you overrated. In the sense that calling it the Hughes Court, but you could have been calling it the Hughes parentheses, Kangaroo parentheses court.
J. Aughenbaugh: Because if it was actually a functioning government institution, the other institutions wouldn't have been taking potshots at it. Now, you mentioned Scalia a few moments ago and Conservatives swear by Scalia.
N. Rodgers: And some Liberals. He's venerated by a lot of lawyers. Let me put it that way. Of all stripe.
J. Aughenbaugh: Even current Justice Kegan, who is a liberal said after his death, "We are all texturist now". Yes, okay? The court focusing on the words of laws and constitutional provisions, okay, matter in large part because Scalia got on the court and would go ahead and say, I don't care what the purpose or the intent was. What do the words say? And that's what Scalia would say.
N. Rodgers: But see, I would say Scalia is overrated because Scalia was a crabby, crabby man whose opinions are crabby, his public conversations were crabby. I mean, what he said to people after the Gore decision was, get over it.
J. Aughenbaugh: Yeah. You didn't like it.
N. Rodgers: You changed world history. You don't get to say to the other side, get over it.
J. Aughenbaugh: Yes.
N. Rodgers: It's such a jerk thing to say. For me, whenever I have, so one of my besties is a lawyer, and he just loves Scalia. He loves Scalia. Even when he disagrees with Scalia, he loves Scalia. I'm like yes, but he was such a jerk. You know what I mean? I get where you're talking about with his opinions, but also, shouldn't you have to be nice, at least mildly, sometimes. But apparently, you didn't. Although, I guess he must have been nice to some people, because Ruth Bader Ginsburg thought he was fabulous. But I think she may have had Stockholm syndrome.
J. Aughenbaugh: Or maybe she was willing to go ahead and accept the negative characteristics of his personality and decided to focus on the characteristics that she truly enjoyed. But to your point
N. Rodgers: That's true.
J. Aughenbaugh: Every time I think about Scalia, I'm reminded of my grandmother who used to say, You catch more flies with honey than you do with vinegar. And I think sometimes Scalia lost influence on the court, or at least among some of his fellow justices, because of the vinegar part, the abrasive personality, the writing style. There is some pretty good evidence to suggest that by the end of the last few years on the court, Scalia would lose O'Connor's vote in closely divided cases because he had so frequently criticized her opinions in earlier cases. For O'Connor, that's not what colegial colleagues should do.
N. Rodgers: Right.
N. Rodgers: Don't call me out publicly, call me out privately, let's have a discussion.
J. Aughenbaugh: Yes. Because some people don't take well to public criticism. Scalia didn't care because for Scalia, what was important was you should do this correctly. He was not willing to budge.
N. Rodgers: Well, he also believed he was right always.
J. Aughenbaugh: Always, he is always thought he was right.
N. Rodgers: He was never wrong, that may also have had something to do with that.
J. Aughenbaugh: Yes.
N. Rodgers: I think it's funny when the press falls in love with the justice.
J. Aughenbaugh: My goodness.
N. Rodgers: I think it's interesting when they fall in love with the justice in part because it's hard to live up to the hype. What happens is that a person gets a reputation from the other side, the people who are not in love with the justice as overrated when it may or may not be accurate. It may be that they've just gotten so much adoration that anything they do that falls short of that is utter failure. Do you what I mean? At some point, I'm sorry, I'm going to curse Taylor Swift now. At some point, she's going to release an album that doesn't go quadruple platinum on the first day. Well, it's going to happen in her career because it does. It happens to everybody. That will be seen as such an epic failure. It's really weird to me. It's like people say the third Indiana Jones movie was such a failure. First of all, it was, it was a terrible movie. But it still made an enormous amount of money, like defined failure. What's your expectation is so hot like the Marvel movies? You see some of the smaller movies come out, they don't make as much money and everybody's it's like a failure. It made $800 billion. What do you want? How are you defining failure here?
J. Aughenbaugh: Or it's not as successful, but were they trying something different?
N. Rodgers: Exactly.
J. Aughenbaugh: Or the example that comes to my mind is Justice Anthony Kennedy, who the press frequently spoke glowingly because of his role in maintaining a woman's right to choose in Planned Parenthood versus Casey. He wrote the majority opinions in Lawrence V. Texas, and Obergefell versus Hodges in regards to the rights of people in same-sex relationships. But what's really interesting to me is, and I'm not the only one who's come to this conclusion. You can like the outcomes in all of those cases. But they are more majority opinions that he either wrote or coauthored, were terrible.
N. Rodgers: Scholars don't like the reasoning.
J. Aughenbaugh: The reasoning or the logic, you're just like, what is this? This doesn't make any sense.
N. Rodgers: That's a different kind of overrated isn't it?
J. Aughenbaugh: Yes.
N. Rodgers: When you're popular, but your opinion doesn't make any sense. Or is not likely to stand up to the length of time. If it doesn't make any sense or it's poor logic, it will eventually be overturned.
J. Aughenbaugh: Just to give you an example in the Lawrence V. Texas case, Texas had a law that criminalizes homosexual sodomy. But they allowed heterosexuals to engage in sodomy.
N. Rodgers: Well, that's not cool.
J. Aughenbaugh: The Supreme Court held that the Texas law was unconstitutional.
N. Rodgers: Good for the Supreme Court, they should have.
J. Aughenbaugh: I actually agreed with the outcome. I thought O'Connor's concurring opinion, which focused on the equal protection clause. You're treating homosexuals differently than heterosexuals, and you have no good reason to do so. Was far better than Kennedy's long-winded discussion of liberty. We're like he's talking about the liberty interest of adult consensual couples to engage in. I'm just like why are you going there? Right?
N. Rodgers: No, I'm with O'Connor, if the law should either be no one can do this or anyone can't do this. Some people because we don't agree with their partner choice. But she's right, that's a due process issue. That's equal before the law issue.
J. Aughenbaugh: Don't go with the due process clause, which then goes ahead and begs all the loaded freighted weight that has been associated with the due process clause.
N. Rodgers: Both ships at the equality.
J. Aughenbaugh: But again, they loved the outcome. The media loved the outcome. But they didn't read the opinions.
N. Rodgers: That's part of the problem with the media. The media loves to fall in love with the first Hispanic, the first African American. First Man, the first woman well, not man. The first woman, they love all the first. Part of me wants to say, have you read any of their opinions?
J. Aughenbaugh: Yes.
N. Rodgers: Do you know whether they're actually a good writer? Do you know whether they are a good thinker? Do they have clear logic? You're just in love with the fact that you get to celebrate this awesome first-person being on here. I'm not trying to slam Justice Sotomayor. But I've read a few of her opinions, they're tough to read sometimes.
J. Aughenbaugh: Sure.
N. Rodgers: They're not the easiest to read. She's a persuasive writer, but she's also a complex writer. I think to myself, I bet that a lot of people who just think she's the most wonderful thing since slice bread have never actually read one of her opinions.
J. Aughenbaugh: Yeah. Because if I went ahead and compared her writing to Khan's writing, I will take Kagan's writing any single day because Kagan is clear, uses metaphors and analogies that help the non scholar, non justice understand what the courts actually doing. Again, I think sometimes with Justice Sotomayor, she is so impassioned about how she views the law that she has a really difficult time translating it in a way that other people can go ahead and understand the logic and understand how that plays out for future cases. But again, she gets all kudos because she was the Hispanic on the court. Again, we should celebrate that.
N. Rodgers: About dang time. That was long time coming considering how many folks have contributed to the law over the years. It finally took them that long to put on.
J. Aughenbaugh: But sometimes part of the difficulty in evaluating justices is what you talked about in regards to expectations.
N. Rodgers: They're hyped so hard that then if they don't do a thing that you think they're going to do. Either, I like to think of Brett Kavanaugh with this. Everybody thought Brett Kavanaugh would be an arch-conservative. He will be so conservative that he will disappear in a box of conservative, right-leaning, whatever, and nobody will ever see him again. He will just be right that will be his and he's not been. He's been pretty relatively moderate for many, not all cases, but for many cases.
J. Aughenbaugh: A lot of that, again, is based on the fact that so many people believed the allegations against him during his confirmation hearing.
N. Rodgers: Everybody thought Justice Brown Jackson would be the other way. That she would be so far to the left. That you wouldn't be able to see her from the middle. She is on the left. There's no question, she is on which side of the court, but she's not. She a mainstream liberal, not excessively liberal, which I think people thought she would be this excessive, I think it's funny that we think that they're going to reflect the politics of the person who nominates them. You have said over and over on this podcast that that is just not an indicator.
J. Aughenbaugh: No.
N. Rodgers: Because.
J. Aughenbaugh: There are too many exceptions to go ahead and believe that is an accurate expectation.
N. Rodgers: Yeah.
J. Aughenbaugh: To give you an example, excuse me, listeners. I just got the infamous frog in one's throat. Read it.
N. Rodgers: Leap in here while you're taking a slop swallow. I think that is a common thing that the media actually tries to lean into and portray. Well, if they're being nominated by fill in the blank person, they're going to be this way on the court because the media doesn't read their decisions either. You know, they don't?
J. Aughenbaugh: Yeah.
N. Rodgers: Anyway.
J. Aughenbaugh: Sometimes we are legitimately surprised. I think, for instance, somebody like Justice Felix Frankfurter, who was a progressive attorney Slash law professor at Harvard, had advised FDR on the New deal. But when Roosevelt put him on the court, Felix Frankfurter was a huge practitioner of judicial restraint Nia. He did because thought progressive, if you will, legislation should come from the people, not the unelected judiciary.
N. Rodgers: I agree with that.
J. Aughenbaugh: Liberals were extremely disappointed in him, because in part, they thought well, Roosevelt nominated him, and Roosevelt didn't like the conservatives on the court. No, what Roosevelt didn't like was Justice's ruling against his new deal.
N. Rodgers: It was much more selfish.
J. Aughenbaugh: Yes. It was simpler. As far as Felix Frankfurter was concerned, it didn't matter if the legislation was conservative or liberal. Unless it was manifestly, obviously unconstitutional, he didn't think the court should overturn it.
N. Rodgers: Okay.
J. Aughenbaugh: Likewise, Robert Jackson was FDR's primary attorney, in the late 1930s. If FDR had a legal problem and he wanted somebody to fix it, it was Jackson. But Jackson gets on the court, and his view changed, at least what we expected his view to be, because he, like Frankfurter, believed in judicial restraint. The court should not solve every problem in society. Liberals were just like, what the hell, what's going on with Justice Jackson? Or on the flip side, David Souter was appointed by Bush 41 to the Supreme Court. He so often voted with the liberals that it becomes a mantra among conservatives. No more suitors. But again, if you think about what David Souter said during his confirmation hearing, David Souter believed in precedent. Well, at the time he was getting on the Supreme Court, most of the landmark Supreme Court precedents were issued by the Warren Court.
N. Rodgers: Right.
J. Aughenbaugh: As far as Souter was concerned he was, if you will, subscribing to stability and consistency in the law.
N. Rodgers: In some ways, people who are, we should have called this overrated and underrated because some of the underrated justices are justices who did that very thing, who have gotten on the court and said, one, I'm going to be here forever.
J. Aughenbaugh: Yeah.
N. Rodgers: I am not reflecting a particular presidency or a particular moment in history because I'm looking across the breadth of history. Both the past and I'm looking at the breadth of the future and trying to find a place where we can do good judicial work.
J. Aughenbaugh: Yeah.
N. Rodgers: Those people, I think, have been wildly underrated. People whose names you may not remember, but who have done the yeoman's work of the court.
J. Aughenbaugh: We got a case, the issues are difficult. We're going to settle this case, and we might have to revisit these issues in the future. But we have a modest role here. I'm thinking about justices like Jackson, like Felix Frankfurter, the subject of my dissertation, Byron White, Potter Stewart, who, I don't believe gets nearly enough love, from scholars or from the media, Justice O'Connor.
N. Rodgers: Who is very moderate in her. We should solve the problem front of us. We should not expand to solve all the problems.
J. Aughenbaugh: If the people's representatives want to weigh in in response to our ruling, all the better. Why? Because we live in a democracy. I think there's a lot of value to those judges or justices who fly underneath the radar, who do solid work for 15, 20 years, and nobody remembers them afterwards.
N. Rodgers: Is Potter Stewart, your favorite of those?
J. Aughenbaugh: Potter Stewart. Yeah. There's a lot of, like, common sense Midwestern to him. He was born and raised in Ohio.
N. Rodgers: Is there anybody on the current court that you think is Yeoman?
J. Aughenbaugh: Kagan falls into that category. Coney Baird or Kavanagh have the potential. But Kagan [inaudible] I think Kagan's got that potential. That and the fact that I like justices who write well and clearly. Robert Jackson always appealed to me because I thought he wrote so well. Kagan today. John Roberts, in some of his writing, makes sense to me because they write clearly and their logic is pretty well thought out. But there are a number of variables here.
N. Rodgers: Which is Abe Fortas fallen?
J. Aughenbaugh: Abe Fortas, to me, always was a better litigator than he was a justice. He was a great legal fixer, by the way. He solved a lot of legal problems when he was an attorney. He was the go to attorney for Democratic politicians in the Democratic Party. That's how he first came to know Lyndon Johnson when Johnson was just a member of Congress. I thought Abe Fortas would have been.
N. Rodgers: Just a member Congress.
J. Aughenbaugh: Just a member Congress. Listeners, the other thing I hope this episode gets you to think about is, what criteria are you using when you evaluate a judge or a justice. Is it their opinion writing, is it their impact on jurisprudence? Do they lead their colleagues? How well do they work with their colleagues? But if you want your justices to be partisan, to not compromise, do understand that their influence might be limited because they don't compromise. If that appeals to you, that's a legitimate criteria, but their influence might be limited because they're unwilling to compromise to get a fifth or sixth vote for a majority in a case. On the current court, I'm thinking about Sotomayor and Thomas, who are on the ends of the ideological spectrum. Sotomayor is a liberal Thomas is conservative. They oftentimes lose votes in cases because they don't like to compromise. They are infamous for not compromising, which is great. If that's important to you, that's great. I'm not being condescending here. You have to.
N. Rodgers: No. You have to figure out what's important and what is not important.
J. Aughenbaugh: If being principled and not compromising, is an important value for you, then you should like Sotomayor or Thomas depending on your ideological perspective. But on a multi member court like the Supreme Court, you may not be able to get that fifth or sixth vote so that your desired outcome wins.
J. Aughenbaugh: All right?
N. Rodgers: Can I before we wrap up, I know you have a justice you want to talk about in terms of being underrated. But I want to mention a justice I want to talk about in terms of being underrated, I don't think that Tom C Clark.
J. Aughenbaugh: Yes. That's a good one.
N. Rodgers: Is brought it up very often. But didn't he write the communion in map?
J. Aughenbaugh: Map versus Ohio.
N. Rodgers: About stuff that stuff that can't be used in court that's sees incorrectly? Isn't that basically what that case is about?
J. Aughenbaugh: Yeah. Map versus Ohio.
N. Rodgers: It's evidence. It's how you get evidence.
J. Aughenbaugh: The Supreme Court went ahead and said that the Fourth Amendment means that when law enforcement illegally or unconstitutionally obtained evidence against you, then that evidence cannot be used in the trial against you. This is known as the exclusionary rule. Tom Clark, was.
N. Rodgers: Could that be more influential?
J. Aughenbaugh: It had a huge impact on criminal law.
N. Rodgers: When you think in terms of what is excluded in court every day, his ruling.
J. Aughenbaugh: It had a huge impact.
N. Rodgers: A huge impact. If you said to people, who's Tom C Clark, they'd be like, was he an astronaut? Or if they don't have any, they would not have any idea to Justice Clark.
J. Aughenbaugh: Tom Clark had a fascinating career because he was the Attorney General of the United States. He gets on the Supreme Court. He is overshadowed by Earl Warren, William Brennan, Stewart Frankfurter. He served with some heavy weights.
N. Rodgers: Wasn't he with one of the Harlans?
J. Aughenbaugh: Yes. Second Justice Harlan. But he in many ways, had a very, what's the modest conception of the court? He was part of the Warren Court majority, but he was frequently skeptical about how far the Warren Court was willing to go. He often times thought that the court only took these cases because the other government institutions failed. Even the decision in Matt versus Ohio was the result of the fact that so many law enforcement were engaging in bad behavior to get evidence to be used against those accused of crime. He wrote a concurring opinion, I believe in Baker versus Carr, where the Supreme Court said voting in election cases could be heard by the federal courts, and he chastised in his concurrence, Southern and border states, that if they didn't like the court's ruling in Baker versus Carr, they only had themselves to blame because the court should not be getting involved in these disputes, if not for those states, treating voters in urban areas, usually voters of color differently than white voters in rural areas. Again, this is a really good example of a justice to where you're just like, they have a pretty good idea of the role they think the court should play. But if you force them to go ahead and take a look at this, you may not like the result. Now, Tom.
N. Rodgers: I think he falls into the hugely underrated category.
J. Aughenbaugh: Yeah.
N. Rodgers: In terms of people whose names you have not heard, but you should have heard.
J. Aughenbaugh: Sure. Yeah, and he also did something that a parent will understand. He resigned from the Supreme Court when LBJ made his son, the Attorney General of the United States.
N. Rodgers: I didn't know that.
J. Aughenbaugh: He understood that Johnson wanted his seat because Johnson wanted to go ahead and appoint, I believe it was Thurgood Marshall to the Supreme Court, but Tom Clark resigned his seat because there would be a conflict of interest. His son would be involved in pretty much any appeal that the federal government was a party to in front of the Supreme Court. Again, that modesty appeals to me.
N. Rodgers: The other underrated justice that we have to talk about before we wrap up overrated and underrated. We spent a lot of time on overrated, we spent a lot less time on underrated. We probably should have I don't know, done that in the reverse, but is Justice Thomas?
J. Aughenbaugh: Yeah. Thomas.
N. Rodgers: Justice Thomas for years, didn't speak. He just listened, very carefully to what was being said. And people thought that he was not engaged. They thought he wasn't doing the things that Supreme Court justices do.
J. Aughenbaugh: You're being diplomatic here, Nia. I mean, some of the criticism was he didn't have the intellectual capacity to do the work of the Supreme Court justice, that the only reason was.
N. Rodgers: That he was a hire because of his race.
J. Aughenbaugh: That's right.
N. Rodgers: Affirmative action hire.
J. Aughenbaugh: Yeah.
N. Rodgers: That's what he was accused of.
J. Aughenbaugh: According to some liberals, he was an Uncle Tom that he was only on the court because he was a Black conservative.
N. Rodgers: While I do not agree with, I would say, 98% of Justice Thomas opinions. That may be low ball on it.
J. Aughenbaugh: Again, I appreciate your diplomacy.
N. Rodgers: I do not believe that Justice Thomas rules without thought. I think that his opinions are very thought out, and they seem to be pretty consistent with what he believes.
J. Aughenbaugh: Yeah.
N. Rodgers: He believes. Again, what you're talking about this idea of that's not up to us, that's up to the legislature. We are not in the business of doing the people's business. That is not what we should be doing.
J. Aughenbaugh: He is such a committed originalist. Again, listeners, originalism is one of the sub theories of being a strict constructionist. Justice Scalia was a textualist. Justice Thomas is an originalist. But Thomas is such a fervent consistent subscriber to originalism.
J. Aughenbaugh: He's willing to accept the consequences of originalism even if the outcome means it's a liberal outcome versus a conservative outcome. He's willing to go and accept consequences even if it means decades or hundreds of years of Supreme Court rulings get overturned. Now if you are somebody who believes in principled judicial decision making I would argue you could not find a more principled, consistent judicial decision maker than Clarence Thomas in roughly the last 25 to 30 years.
N. Rodgers: My fundamental problem with him is that I don't like his underlying.
J. Aughenbaugh: His preferred method of interpretation.
N. Rodgers: But I do admire that he does not vary from it. In the years that I have known you when I have said how is Justice Thomas going to vote? You've been able to predict him 100% of the time. He's not surprised you because you look at it you know exactly what he's going to look for.
J. Aughenbaugh: Yes.
N. Rodgers: He is consistent. I consistently disagree with him but he is consistent in how he interprets the law and how he interprets the position of the Supreme Court. In some ways he's very much an institutionalist. In that he has a belief system about what the court should and should not do. When it should act and when it should not act and he is consistent within that.
J. Aughenbaugh: That even flows to what he thinks the federal government has the authority to do versus states, what individual liberties mean and what they don't mean. Again much like you Nia I often disagree with him. I think listeners you've probably picked up. I like those justices that answer narrow questions. It's a philosophy discussions, a philosophy courses.
N. Rodgers: In your obscure philosophy of law class that they force you to take whether you want to do or not.
J. Aughenbaugh: But nevertheless that's my preference. But I can admire a justice like Thomas. Who consistently and he doesn't make changes simply because it would yield a better outcome that he might prefer individually.
N. Rodgers: Also his intellectual rigor is not in question in my mind. I understand that people want to find something about him in order to underrate him right in order to say he's not worthy. I don't think that's the thing you can find. I think you can find him utterly disagreeable as a human. I think you can find him utterly disagreeable in terms of your opinions about things. But I don't think you can say that he is intellectually not rigorous.
J. Aughenbaugh: No.
N. Rodgers: I think the questions that he's been asking in the last few years since he's come to his own in terms of questions show that. I just don't like it. I just don't like his jurisprudence but that's not the same as not recognizing. I didn't like Scalia either, but I think Scalia was intellectually rigorous. I disagreed with Scalia quite a bit but I I don't think he was not an intelligent man who didn't understand what he was talking about. He just had a different viewpoint than I do.
J. Aughenbaugh: Sure. Again in listeners as we conclude this episode one of the things that we challenge you to do is what criteria matter to you when you are evaluating judges? Particularly with appellate court judges that are ruling on the meaning of the law not necessarily the facts of a case. What are the important criteria? If it's just outcomes that's fine.
N. Rodgers: You can dislike judges because they have a different political leaning than you do or they have a different understanding of the law than you have.
J. Aughenbaugh: But understand the downsides.
N. Rodgers: Don't try to stay out of their court if you can. Because then otherwise you'll be in trouble.
J. Aughenbaugh: Understand the downsides of focusing just on outcomes because that means that the court is as political as a legislative body or an executive body.
N. Rodgers: Which we don't want. It's not dependable. To me it's not dependable because consistency is what's important.
J. Aughenbaugh: If you don't think consistency is important do understand that then the membership on a court will change which means the meaning of law changes.
N. Rodgers: I'll argue that I will think you're wrong.
J. Aughenbaugh: In what [inaudible]
N. Rodgers: If our opinion matters to you we will think you are wrong if you do not want a logical consistency to the law. Because well I'm speaking for me not for Aughie. I want the law to be logically applied because I think that is the most fair. What we have had in the past is application of the law has not been fair. We can see that by the number of wild number of African American young men incarcerated versus white men of the same age. That is not a fair application of the law. If you want a logical consistent fair application of the law which is what I want then sometimes you have to settle for people who you don't intellectually agree with but who are being consistent or logical. That's what's important to me. Also hairstyles. Hair styles are important.
J. Aughenbaugh: You have mentioned hairstyles can be important.
N. Rodgers: I'm kidding.
J. Aughenbaugh: Me I become very skeptical if I find out that a judge drinks tea instead of coffee. I immediately call into question their intellectual bona fides. No I'm just kidding.
N. Rodgers: Aughie and I both also value a administrative people. People who work well together as a group. Part of that is because we work in small groups. We both have departments that are relatively small. Mine's about half the size of Aughie's. If you can't get along with the people you work with. Then we both even struggle to have respect for you.
J. Aughenbaugh: Even if they think differently than you it's going to be really difficult to achieve you the common work that is the reason why you were created and organized in the first place.
N. Rodgers: The whole point of that comes back to our catch phrase civil discourse. You need to be able to have civil discourse with your colleagues. Some people on the court have not been civil. The gentleman who would not sit with his Jewish colleagues.
J. Aughenbaugh: That is Justice McReynolds.
N. Rodgers: Justice McReynolds was an uncivil pookie head. Sorry I was trying to think of a word that wasn't foul. Turkey head is what my step brother uses. He's a turkey head and so we don't subscribe to that. We subscribe to people who are logical and we subscribe to people who get along. Not just get along but who come to honest agreement. Where can we find the places in this case where we can honestly agree and honestly carry things forward?
J. Aughenbaugh: There's an understanding that people are going to think differently which is not bad. But where is the common ground?
N. Rodgers: I take it back. It's bad when they don't think the same way I do. That's because I'm a dictator at heart. On that happy note.
J. Aughenbaugh: We are done with our discussion of overrated and if I dare say underrated Supreme Court justices. Thanks Nia.
N. Rodgers: Thank you Aughie.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.