Having participated in two editions of the SUPREME COURT COMPENDIUM (Epstein, et al, 1996), it should come as no
surprise that I like lists. I know I am not alone in this affinity. Lists, especially those that rank the best and the worst of anything,
always generate interest and controversy.
The latest book from the pen of the prolific Bernard Schwartz is devoted to thirteen legal lists. Each list constitutes a focal point
for a chapter, and each chapter follows the same format. Schwartz first ranks the ten greatest or the ten worst of a particular
legal phenomenon, and then devotes the rest of the chapter to explaining and defending his choices.
This book is more fun than scientific. Schwartz acknowledges that the rankings are "personal." They are based on informed, but
subjective, judgment, not unlike debates over who was the greatest nineteenth century composer or who should play in baseballÆs
All Star Game. In spite of the nonscientific nature of the rankings, the opinions expressed in this volume are not to be minimized.
Schwartz, Chapman Distinguished Professor of Law at the University of Tulsa, is a prominent scholar with more than fifty years
dedicated to the study of law and the Supreme Court.
Schwartz begins his book with chapters devoted to the greatest and the worst Supreme Court justices. He has plenty of company
in attempting to identify the greatest justices. At least eleven previous "greatest" lists have been published (see Epstein, et al.,
1996, table 5-8). SchwartzÆs list differs only marginally from the ratings provided by others. In order, he ranks J. Marshall, Holmes,
Warren, Story, Brennan, Brandeis, Hughes, Black, Field, and Taney as historyÆs best. None of these is an unreasonable choice for
inclusion in the top ten. Schwartz provides ample argument to establish that each of these jurists had a remarkable influence on the
development of American law.
The authorÆs treatment of the ten worst Supreme Court justices is a much more entertaining read. He reserves for this list justices
who stood for repudiated legal doctrines, failed to provide effective leadership, or were overly partisan, bigoted, rigid, simplistic or
"just plain dumb." Alfred Moore leads the list, followed by Whittaker, Vinson, McReynolds, Peckham, S. Chase, Barbour, S. P.
Chase, Butler and Minton. Justice Moore, therefore, was not only the smallest justice (at four and a half feet tall and less than 90
pounds) but also, according to Schwartz, the worst. ItÆs hard to make an argument to save the justice from North Carolina. He
wrote only one opinion (of one page) in four years of Court service; and when MARBURY v. MADISON was argued Moore
showed up too late to participate. Charles Whittaker runs a close second to Moore. Schwartz argues that Whittaker may well
have been the dumbest and the least decisive justice ever appointed. He quotes Potter Stewart as explaining that Whittaker would
leave the conference literally crying, explaining that "Felix used words in there that IÆd never heard of." On one occasion,
Frankfurter circulated a satirical, mock opinion in the 1957 censorship case of TIMES FILM CORPORATION v. CITY OF
CHICAGO. Whittaker joined the opinion. Frankfurter had to send Whittaker a note that the opinion was a joke.
Next comes lists of the greatest and worst decisions handed down by the Court. Determining the greatest decisions, and limiting
their number to ten, is a difficult task. SchwartzÆs choices are certainly reasonable with MARBURY leading the list. The others
defined the limits of government power (McCULLOCH, NIXON), defended basic liberties (BROWN, MILLIGAN, BAKER), or
introduced new constitutional rules in regulating the economy (GIBBONS, GRANGER CASES, JONES & LAUGHLIN STEEL
CORP., CHARLES RIVER BRIDGE). Noticeably absent from the list are the more important twentieth century civil liberty
decisions (MIRANDA, ENGEL, ROE, GIDEON, MAPP, etc.). The worst decisions are simply the converse of the greatest. Led
by DRED SCOTT v. SANDFORD, they either refused to acknowledge basic human dignity (PLESSY, KOREMATSU,
BRADWELL, and BUCK) or were terribly out of step with the economic needs of the nation (LOCHNER, HAMMER,
ADKINS, CARTER COAL, and HEPBURN).
The chapter on the greatest dissenting opinions has an inspirational quality about it. Just scanning the list evokes feelings of
appreciation and admiration for some of historyÆs best crafted statements of the law -- all written in the face of a majority in
opposition. Any student of the Court has his or her own favorite dissenting opinions, but Schwartz will find considerable support for
all of his choices. Benjamin CurtisÆs dissent in DRED SCOTT gets SchwartzÆs nod as the greatest of all dissenting opinions.
Holmes and Brandeis lead with three dissenting opinions each on the top ten list. For Holmes, his dissents in LOCHNER,
HAMMER, and ABRAMS ranked second, fourth, and fifth, respectively; and BrandeisÆs dissents in WHITNEY, OLMSTEAD,
and NEW STATE ICE rated sixth through eighth. Rounding out the ten greatest were HarlanÆs dissent in PLESSY (third),
StoneÆs in BUTLER (ninth), and BlackÆs in ADAMSON (tenth).
Schwartz then asks the reader to join him in thinking about how history would have been different had certain Supreme Court
events not occurred. He calls this his "Might Have Been" top ten. At the top of the list is the appointment of John Marshall to be
chief justice. It is hard indeed to imagine how American government in general and the Supreme Court in particular might have
evolved had Marshall not assumed the center chair and served for the next 34 years. And, of course, MarshallÆs position easily
could have gone to another. After all, John Jay was offered the position first, but he declined. President Adams then seriously
considered, among others, William Paterson, who had substantial political support and even the endorsement of Secretary of State
Marshall, before finally deciding to nominate the person who was to become the greatest chief justice. Next on the list comes the
appointment of Chief Justice Earl Warren and a string of particularly important Court rulings (MARBURY, BROWN, DRED
SCOTT, LOCHNER, and BAKER). Strong arguments can be made that history would have been altered had these cases been
decided differently. The final three entries on this top ten list are a bit puzzling. All three are Court decisions (ROE, WEBSTER,
and MAPP). The puzzle is not that at least two of these decisions (ROE and MAPP) had a considerable impact, but that all three
fail make SchwartzÆs earlier list of the best or worst decisions and yet they merit inclusion here.
Not all of SchwartzÆs lists deal with the Supreme Court. He includes chapters on the greatest non-Supreme Court judges (led by
Lemuel Shaw), law books (the FEDERALIST PAPERS), trials (the Andrew Johnson Impeachment), lawyers (Alexander
Hamilton), and law oriented movies (ANATOMY OF A MURDER). SchwartzÆs choice for the greatest non-Supreme Court
decision is BAYARD v. SINGLETON (1787), a North Carolina Supreme Court ruling that clearly stated the case for judicial
review long before MARBURY. Heading the list of the worst non-Supreme Court decisions is MITCHELL v. WELLS (1859),
one of historyÆs most astonishing defenses of slavery. It is a decision ugly in both outcome and rationale. In its opinion the
Mississippi Supreme Court characterized African Americans as a "mongrel race" occupying a place "between the irrational animal
and the white man" and compared extending citizenship to blacks to giving political rights to "the chimpanzee or the
ourang-out-ang." The MITCHELL decision is closely followed by a more contemporary ruling, Judge Brevard HandÆs decision in
JAFFREE v. BOARD OF SCHOOL COMMISSIONERS (1983) that the states are not bound by the Establishment Clause.
The book ends with 150 trivia questions and answers. Here we learn, among other things, that Sherman Minton was the last
justice to use a spittoon on the bench (a practice that terribly upset Harold Burton who sat next to him), that Learned HandÆs first
name was really Billings, that Justices Ginsburg and Scalia appeared together in a 1994 opera production, that the 317 appearances
by attorney Walter Jones is a Court record, and that Justice Story served as a bank president while he sat on the Court. This
section of the book was probably inspired by the answer to Trivia Question #21 which informs us that Justice Rehnquist used to
play a version of Trivial Pursuit during oral arguments and often enticed Justice Blackmun to join him.
Anyone conversant with the history of American law will appreciate this book. But it is more entertainment than scholarship.
There are no footnotes, no references, no bibliography, and no index. No argument is made, no thesis presented. It is simply one
scholarÆs set of best and worst lists based on decades of study. Yet the volume contains innumerable facts and anecdotes and
covers the broad spectrum of American history. Tucked within its pages teachers of law and the judicial process will find
wonderful nuggets of information that can be used to enliven classroom lectures and discussions.
Reference
Epstein, Lee, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker. 1996. THE SUPREME COURT COMPENDIUM:
DATA, DECISIONS & DEVELOPMENTS. 2nd edition. Washington: Congressional Quarterly.
