The Judges Towering Judges Tower Over


Mark Tushnet

Harvard Law School

“Towering-ness” is a relational concept. A towering judge towers over someone – her colleagues or her predecessors, for example. Seeing towering-ness as relational suggests that we can distinguish between “colleague-independent” and “colleague-dependent” conditions for towering-ness.

Colleague-independent conditions include matters like the length of time a judge serves or the historical period during which the judge sits. It is quite difficult, though not impossible, to be a towering judge if one does not serve on a court for a reasonably long period of time. And, it may be easier to be a towering judge if one serves during a founding era or a period of acute national crisis.

What of colleague-dependent conditions for towering-ness? We might consider here the saying, “In the land of the blind the one-eyed man is king.” A towering judge might stand out from her colleagues simply because they are (for example) incompetent and corrupt and she is “merely” competent and honest. We might learn a great deal by seeing what is it that makes a person stay honest when surrounded by corruption.

Some judges tower over their colleagues because they are much better lawyers than the others. Felix Frankfurter reported a charming comment by his U.S. Supreme Court colleague Justice Owen Roberts, “Who am I to revile the good God that he did not make me a Marshall, a Taney, a Bradley, a Holmes, a Brandeis, or a Cardozo?” Roberts was a central actor in the famous “switch in time” at the U.S. Supreme Court in 1937, seemingly switching from a conservative to a progressive position while the Court was under severe attack from President Franklin Roosevelt.

Examining Roberts’s actions in 1937 suggests that one important reason for his changed positions was his interaction with Chief Justice Charles Evans Hughes, and in particular his sense or understanding that Hughes had a better grasp of the legal issues than Roberts did. Roberts told Hughes’s biographer Merlo Pusey that he “felt … keenly” Hughes’s intellectual superiority. Roberts later said that he “wonder[ed] why the hell” he had taken a progressive position and answered for himself, “just to please the Chief.” According to Roberts, Hughes “often came up with ingenious arguments which averted dissents.”

The word “ingenious” suggests that Roberts saw a difference between Hughes’s and his own capacity to come up with acceptable legal arguments. This view is of course not the only thing Roberts had; wanting to “please the Chief” suggests that inter-collegial relations matter too. But, in Roberts’s self-report legal ability matters.

My suggestion, then, is that one thing that makes some judges tower over others is that they are simply better lawyers. What, though, does legal ability consist in? Here I rely on Duncan Kennedy’s account. For Kennedy, the legal materials available to a judge are typically sufficiently rich to enable a judge, using widely accepted techniques of legal reasoning, to reach a result the judge believes to be just.  But, using those techniques – distinguishing one case from another, analogizing the case at hand to others, and more – requires what Kennedy calls “work.” For Kennedy, the amount of work a judge is willing to do depends on the “stakes” of the case: When the stakes are high, a judge is willing to do more work than when they are low.  The stakes are measured by the chance that good or bad outcomes will occur.

Yet, no matter how much work they do, some judges are simply not able enough to see their way through to the conclusion they seek. Sometimes they end up going the other way – that is, voting for a position they disagree with in some sense when they cannot see an adequate legal argument for the one they want. Sometimes they simply leap over the difficulty, accepting conclusions not supported by the arguments they are able to develop. The key here is that towering judges are not like that. They always can use the available legal materials to reach the conclusion they think most desirable. That is what Roberts was describing in his characterization of himself in relation not only to Hughes but to Marshall, Taney, Bradley, Holmes, Brandeis, and Cardozo.

Relative legal talent might be one colleague-dependent criterion by which we can determine that a judge towers over his or her colleagues. It is neither a necessary nor a sufficient one, though, as other examples from the United States show.

Take necessity first. Chief Justice Earl Warren is clearly a candidate for inclusion in a list of towering judges: Include the term “the Warren Court” in an article and every reasonably knowledgeable reader will know what you mean even if, from some perspectives it is more accurate to describe the Court that the phrase brings to mind as the Brennan Court. Earl Warren, that is, towers over William J. Brennan. Yet, essentially every scholar of the Supreme Court, including Warren’s most admiring biographers, agrees that Warren’s judicial opinions were often analytically weak, sometimes with obvious analytic gaps between premises and conclusions. 

Nor – to move to the question of sufficiency – was Warren simply a one-eyed man in the land of the blind. That is, he served with justices who rather clearly were better qua lawyer than he was: Felix Frankfurter and John Marshall Harlan for example.

If relative legal ability is neither necessary nor sufficient to make a judge tower over his or her colleagues, what role does it play? One possibility is this: When other conditions obtain, a judge with superior relative legal ability will have the opportunity to become a towering judge – though, as the point about sufficiency shows, there might be other things that provide the same opportunity.

The example of Earl Warren brings up another issue. There is nothing particularly special about the period in which Warren was Chief Justice – not a founding era and no out-of-the-ordinary stress on the political system, for example. On the latter dimension, Warren was situated differently from Hughes. The decade of the 1930s, during which Hughes was Chief Justice, was a period of real crisis for the U.S. political system. The Supreme Court played a role first in exacerbating the crisis then in alleviating it. The Warren Court period, in contrast, was one in which the New Deal, already dominant, fully consolidated itself by extending social citizenship – the New Deal’s defining feature – more broadly. And consolidation is not crisis.

I cannot rule out the possibility that under the most defensible definition of the term “towering judge,” Earl Warren was not a towering judge. And, perhaps, when a judge serves for a long time during a relatively stable period we ought to call him or her a “really good and interesting figure in the court’s history,” but not a “towering” judge.

Seeing towering-ness as a relational concept opens up a wide range of matters for analysis, many of which are developed in further detail in the other posts in the joint symposium.

Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School and previously served as a law clerk to Justice Thurgood Marshall.

Suggested Citation: Mark Tushnet, ‘The Judges Towering Judges Tower Over’ IACL-AIDC Blog (15 March 2019)