Judging the Justices’ Judges

A few years ago, a group of law-school deans and professors of law, history, and political science reputedly expert in constitutional law evaluated all the justices who had served on the Supreme Court up until 1969. The academics in effect rated each justice on a scale of five to one, with corresponding verbal descriptions as follows: “great” (five); “near great” (four); “average” (three); “below average” (two); and “failure” (one). The editors of the American Bar Association Journal subsequently published the results of the survey and solemnly intoned that conclusions drawn from the scholars’ ratings would be likely to be a help in the future selection of justices.

These ratings of the justices are only now finding their way into the literature on the Supreme Court. As time passes, a growing number of scholars will, no doubt, come to rely upon the ratings as a summary device for assessing the quality of individual justices. Before the ABA-published rankings are absorbed into the conventional wisdom concerning the high tribunal, however, and all sorts of unchallenged conclusions based upon the sacrosanct ratings of the professors are put forth, we should attempt to discover whether the survey results are free from ideological bias. Put another way, before an individual justice is undisputedly branded a “failure” in future textbooks on the Court, we should be assured that this dubious distinction was due to extraordinary incompetence on his part and not simply to the fact that his ideology was viewed as alien, or worse, by the panel of experts.

JM

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John Massaro

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A few years ago, a group of law-school deans and professors of law, history, and political science reputedly expert in constitutional law evaluated all the justices who had served on the Supreme Court up until 1969. The academics in effect rated each justice on a scale of five to one, with corresponding verbal descriptions as follows: “great” (five); “near great” (four); “average” (three); “below average” (two); and “failure” (one). The editors of the American Bar Association Journal subsequently published the results of the survey and solemnly intoned that conclusions drawn from the scholars’ ratings would be likely to be a help in the future selection of justices.

These ratings of the justices are only now finding their way into the literature on the Supreme Court. As time passes, a growing number of scholars will, no doubt, come to rely upon the ratings as a summary device for assessing the quality of individual justices. Before the ABA-published rankings are absorbed into the conventional wisdom concerning the high tribunal, however, and all sorts of unchallenged conclusions based upon the sacrosanct ratings of the professors are put forth, we should attempt to discover whether the survey results are free from ideological bias. Put another way, before an individual justice is undisputedly branded a “failure” in future textbooks on the Court, we should be assured that this dubious distinction was due to extraordinary incompetence on his part and not simply to the fact that his ideology was viewed as alien, or worse, by the panel of experts.