The forgotten Supreme Court Justices.

JurisdictionUnited States
AuthorGormley, Ken
Date22 March 2005

When lawyers, law students, and academic commentators discuss Justices of the United States Supreme Court, they typically display a detailed understanding of the person, personality and jurisprudence of the Justice in question. Entire books are written about Supreme Court Justices, past and present. (1) Creating character sketches of these public figures and anticipating their instincts on the bench tends to come easily.

A general, informed portrait of the current United States Supreme Court might look something like this: Chief Justice William H. Rehnquist, the no-nonsense chief, appointed in 1972 by President Richard M. Nixon, is a steady conservative who believes in states' rights, (2) favors bright-line rules for police, (3) and yet adheres to principles of stare decisis even in some areas (such as involving the Miranda rule) where he openly disagrees with the existing precedent. (4) Justice Sandra Day O'Connor, the first woman Justice on the Court, appointed by President Ronald Reagan in 1981, is frequently described as a critical swing vote on the Court. (5) Her plain-spoken voice that developed its cadence on the Lazy-B Ranch in Arizona where she spent her childhood, (6) and later gained its strength and confidence as Senate Majority Leader in Arizona, (7) has allowed her to forge coalitions that have made her--in the words of The New York Times--"the most influential member of the most powerful unelected court in the world." (8)

Even the Justices who maintain a lower profile are familiar to us. Justice David Souter is the quiet, reclusive native of New Hampshire, who disclosed at the time of his Senate confirmation that he did not own a color television. (9) He was appointed by President George H. W. Bush, yet has evolved into an independent and even liberal voice on the Court (10)--he sided with the dissenters in the controversial 2000 election case of Bush v. Gore, effectively voting against the son of the man who appointed him. (11) Justice Anthony Kennedy, who formerly served on the Ninth Circuit Court of Appeals in California, is a strong free speech advocate who often plays a central role in controversial cases; yet, he has increasingly diverged from voting in lockstep with his traditional ally, Justice O'Connor. (12) Justice Clarence Thomas has a reputation for voting regularly with his jurisprudential mentor, Justice Antonin Scalia, yet he is far less aggressive during oral arguments and rarely asks a question from the bench. (13) A quiet, but unyielding strict constructionist, Justice Thomas is widely becoming viewed as one of the leading conservative forces on the Court. (14) However, Justice Scalia, the Italian-American jurist who writes with a lively pencil sharpened by years of teaching at Chicago Law School, still dominates as the Court's most conservative member. (15) He rarely holds back in a dissent, even when disagreeing with his closest friends on the Court. (16)

Justice John Paul Stevens, the Court's oldest Justice with distinguished white hair and gentle demeanor, is the sole appointee of Republican President Gerald R. Ford, who sides most frequently with his colleagues who are Democratic appointees. (17) A Warren Court moderate who turned into a Rehnquist Court liberal, he stays fit at age 84 by playing tennis and wears a trademark bow tie on the bench. (18) Justice Ruth Bader Ginsburg, a former gender discrimination scholar who argued Frontiero v. Richardson (19) in the Supreme Court, continues to play a leading role as a liberal voice, especially when issues of gender and equal protection face the Court. (20) And Justice Stephen Breyer, a former Harvard Law School Professor and former Special Counsel to the Senate Judiciary Committee, whom President Bill Clinton passed up in 1993 before naming him to the Court in 1994, enjoys laboring through intellectual puzzles, head propped in hands, rubbing vigorously at his temple during oral arguments. (21)

We, as lawyers and scholarly commentators, know plenty about our United States Supreme Court Justices. We construct personality sketches and use them to anticipate their decisions, to devise strategies in crafting briefs and arguments before the Court, and to frame our critiques of their opinions in voluminous law review articles.

But what do we know of our state supreme court justices who occupy a parallel position of importance in our highest state courts? In most cases, not much. These justices typically move through life anonymously, in part because we take no time to shine the light of scholarly inquiry upon them. In much of our writing as academics, and as commentators in the popular press, we tend to refer to state appellate judges as inanimate objects who possess neither identities nor judicial personalities. Often we treat these justices, male and female, old and young, alive or dead, as interchangeable pieces of wood. As a result, those who read our writings form no picture of state jurists in their minds' eyes. Nor do they develop a sense of the jurisprudence of individual state court justices when it comes to state constitutional law or any other topic.

Even within that small clique of scholars and commentators who have earned a living following developments relating to New Judicial Federalism, (22) since the 1980s, we tend to recognize only a smattering of the leading jurists from the state appellate courts. Those of us who have traveled the speaking circuit over the years, as nascent state constitutional scholars, are familiar with a few of the all-stars: Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court; (23) retired Justice (now Professor) Hans Linde of Oregon (who was a pioneer in New Judicial Federalism); (24) Chief Justice Judith Kaye of...

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