On Constitutional Visionaries
The justices of the Supreme Court have historically included people who seemed, even during their service, to be genuine visionaries. But things are different today. Notwithstanding its unsurpassed level of sheer competence, the Court lacks old-style constitutional visionaries--in a way that tells us a great deal about the nature of contemporary constitutional law. There is an important qualification to this claim. But before getting to it, we need to clarify some terms.
In the twentieth century, the Court's most obvious visionaries were Oliver Wendell Holmes, Louis Brandeis, Earl Warren, Hugo Black, William O. Douglas, William Brennan, and Thurgood Marshall. All of these justices count as visionaries in a particular sense: They had large and powerful visions of the meaning of the Constitution, and they worked hard and often successfully to convince their colleagues to embrace that vision. These justices also displayed undeniable courage, arguing on behalf of their constitutional vision regardless of its inconsistency with orthodox opinion in important circles--or even in the nation as a whole.
Intriguingly, most of the Court's visionaries came in three identifiable pairs of frequent dissenters: Holmes and Brandeis, Douglas and Black, Brennan and Marshall. And in many domains, the dissenting pairs had a powerful effect on the law, moving the Court as a whole in their direction. Note as well that the visionary justices did not in any sense purport to be "originalists" (with the sole exception of Black). Holmes and Brandeis made large and ambitious claims about the Constitution, but they did not carefully link those claims to the document's text and history.
I do not mean to suggest that being visionary is necessarily a virtue, or that visionary qualities are necessary or sufficient for being great. A justice can be a visionary without being excellent and even without being especially good. To be sure, Holmes and Brandeis were brilliant justices. But Douglas was erratic and often sloppy. Black remains greatly admired, but he relied on a form of unhelpful literalism, arguing, altogether implausibly, that the text of the Constitution provided unambiguous guidance in the hardest cases. Warren, Brennan, and Marshall had wonderful moments and were immensely important; but in terms of judicial craft, none of them can be ranked with (for example) Robert Jackson or Felix Frankfurter.
Some of the Court's best justices do not qualify as visionaries. Jackson, Frankfurter, and John M. Harlan belong near the top of any list of the Court's all-time greats. But much of the time, they were modest in their aspirations. Often they decided cases without setting out ambitious accounts of how to understand large areas of the law. And in their own moments of ambition, they typically sought to produce analytic clarity rather than to offer any kind of grand or sweeping vision for constitutional change or social reform.
In the last two decades, all of the so-called "liberals" on the Court have been minimalists, more in the mold of Jackson, Frankfurter, and Harlan. The two Democratic nominees--Ruth Bader Ginsburg and Stephen Breyer--are strong and exceedingly careful lawyers who usually avoid grand pronouncements. In terms of their basic approach, they are at an opposite pole from Douglas, Black, Warren, Brennan, and Marshall. William Rehnquist did have a massive effect on the law, and there is no question that he sought, with considerable success, to implement a kind of constitutional vision. But he generally did so through a series of incremental movements, not with the sweeping opinions characteristic of Holmes, Brandeis, or Black.
Does it follow that we are now in a period lacking constitutional visionaries? Actually, no. In an important respect, Antonin Scalia and Clarence Thomas qualify as the successors of the great dissenting pairs in the Court's history. Scalia and Thomas have a clear and large-scale vision for constitutional law, in which (for example) affirmative action is abolished, Roe v. Wade is overruled, commercial advertising receives broad protection, campaign finance laws are invalidated, congressional power is significantly limited, and the president receives broad power to protect national security.
In fact Scalia and Thomas are playing very much the same role as Brennan and Marshall in the 1970s, Douglas and Black in the 1950s, and Brandeis and Holmes in the first decades of the twentieth century--offering clear, passionate, dissenting opinions with an occasionally significant effect within the Court itself and even the nation as a whole. In law schools, and to some extent in the culture, Scalia and Thomas seem quite like Brennan and Marshall a few decades ago, in the sense that their dissents have a kind of clarity, energy, and coherence that often attract admiration even from those who disagree with them.
Of course these claims raise many questions. How shall we classify the Court's "Four Horsemen" of the early twentieth century (Justices James Clark McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler), who voted to strike down maximum-hour and minimum-wage laws? The Four Horsemen are not usually considered visionaries. Is this because they lost? Perhaps more fundamentally: In a democracy, isn't it best to have justices who are careful and excellent, rather than visionary? Some of us believe, in principle, that a minimalist path is usually appropriate, especially on large questions on which the nation is divided.
These issues are controversial. But one thing is entirely clear: The absence of anything like an ambitious or heroic vision on the Court's left, and the existence of a clear such vision on the Court's right, is having a major and largely unnoticed impact on the public's understanding of both the Court and the Constitution.
(This post is an expanded and revised version of an essay that appeared on the website of The New Republic.)