Letter from American History - October 2009

Supreme Insight

History has shown that brilliance is hard to hide on the Supreme Court, but much harder to recognize in our modern confirmation process. "The criterion routinely emphasized these days in choosing nominees—prior court experience—is not a good indicator of potential greatness," says constitutional scholar Jonathan Turley, who puts forward his list of the greatest Supreme Court justices of all time in this month's cover story: "The 9 Incredibles," p. 30. Earl Warren had been a popular governor of California, but never sat as a judge before becoming chief justice in 1953. Louis Brandeis came from private legal practice, with no prior judicial experience, when he joined the Court in 1916. And while Hugo Black served briefly as a police court judge in Birmingham, Ala., his most notable experience was as a U.S. Senator before he became a justice in 1937. What troubles Turley the most about the contemporary confirmation process is that bold thinkers are passed over in favor of judges who typically boast impressive academic pedigrees, but have studiously avoided controversy. "The fact is that you can be exceptionally smart and yet lack any vision of the law or ability to transcend conventional thinking or prejudices," he says. "History suggests that the ultimate measure of greatness for a Supreme Court justice is not just intellect but insight."
 

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