Judicial "Greatness" and Judicial Duty

In light of Rick's thoughtful post a few days ago about Justice Scalia's views on the judicial role, I was interested to read this piece by Noah Feldman over at Slate.  The legal commentary at Slate is always good, clean fun for me, principally because it is a source of great comfort to have a place to go where I know that I am certain to have strong disagreements with some recently posted legal interest item.  Last week was no exception; the pleasures of reaction are not to be missed.

In the piece, Professor Feldman voices the hope that Justices Sotomayor and Kagan will "elbow each other to greatness[.]"  He notes that Justice Sotomayor recently dissented from the denial of cert. on a case that seemingly not a single judge to that point had taken seriously as a legal matter and he suggests that she was doing so in order to "hint[]" to Justice Kagan that "[i]f her new colleague opts for the center, [Sotomayor] will take on the role of conscience of the court."  "Once a new appointee has fulfilled every lawyer's ambition by making it onto the court," Feldman explains, "the next step is to become a great justice." 

The question is -- well, how to do that exactly.  How does one become a "great" judge?  Feldman says that "great" justices often get that way by defining themselves against, or in relationship to, other justices whom they view as rivals for personal influence among their fellows.  His central example is the relationship of Justices Frankfurter and Black with respect to the Gobitis case -- how Frankfurter had enough clout to "convince his liberal colleagues" to rule against the right to opt out of the mandatory flag salute, how Black changed his view in part because he "sensed the chance for leadership," and how Frankfurter was in turn "devastated at what he considered the abandonment of principle -- and the loss of his own influence."  The lesson, Feldman thinks, is that "strong rivalries and personalities make great justices," and he concludes with the hope that Sotomayor and Kagan will prod each other to produce "incandescent constitutional ideas or judicial opinions," so that they may become as "great" as Thurgood Marshall, Frankfurter, Black, Douglas, and Jackson.

That there aren't any conservative justices on Feldman's list of "greats" is of course unremarkable: I understand that the hunger of many law professors for a liberal lion on the Court has reached insatiably gargantuan proportions, and these sorts of pep rally pieces are to be expected in increasing supply.  Each to his taste, of course.  But what's much more interesting is Feldman's open embrace of judicial pride -- perhaps even a kind of petty envy -- as the avenue by which "greatness" is achieved.

In some ways, it is something of a surprise that Feldman shouldn't have selected at least a smattering of justices on the right side of the ideological spectrum to make this sort of point about judicial pride or the envies that can stir in the judicial heart.  There is no reason at all that conservative justices would be immune from the desire for personal influence, or from the wish to strike off in a radical and even arguably unlawful direction as the result of feeling that their place in history depended on differentiating themselves from the miasmatic, indistinct (or is it undistinguished?) middle (see here Rick's discussion about the "tempt[ation]" to rule just so on the abortion question).  Perhaps one should only take away from Feldman's piece the notion that he simply admires liberal "greatness" more than its conservative counterpart. 

There's another, less unabashedly partisan way to read the piece, though.  Again, what's really striking about Feldman's claims is not so much the possibility that personal vanities might make a difference in the way that a judge conducts his or her career -- might shape the direction of a justice's views over the course of a life of opinion writing.  That's certainly true, but not such an original point -- it's one that calls to mind Judge Posner's well-known q&a with himself, "What do judges maximize?  (The same thing everybody else does.)"

No, the real contribution of Feldman's piece is the valorization of that sort of pride, the belief that personal envy, vanity, and jealousy are a superb stimulus for the justice who wants to be remembered as "great" and writes his or her opinions with that explicit aim in mind.  Feldman says at the end of the article that we've got boring, polite justices now; would that we had the flaring, red-hot egos of the past, with their sense of historical prominence and their yearning to become titans of the judicial pantheon.  Would that a rivalry between Justices Sotomayor and Kagan developed -- a kind of extended, life-tenure contest in which the competitors measure each others' "conscience" to see whose is longest -- because that is exactly how judicial greatness is born.

I can't say I find much to admire in this vision of judicial greatness.  As I said, I think both conservative and liberal judges can be guilty of permitting pride and vanity to influence their views -- to push them where they would not otherwise have gone.  But the right word for this quality in a judge is not "greatness."  It is pride or vanity or envy.  It is a small quality, not a great one.

No one denies that one's views are inevitably shaped by one's colleagues and the other people with whom one interacts.  No one suggests that justices on the Supreme Court write in a vacuum or as hermits.  But in my view, it is something different to say that a justice's wish to distinguish himself as a historic, "great" justice by comparison with his mediocre colleagues ought to drive that justice in any direction at all -- that envy ought to be used consciously as a spur to "greatness" and that it ought to be exalted, even by those who may have ulterior motives that they believe are worth it.  

I am not one for minimizing, let alone curtailing, courts' powers, and I have great respect for the role that the judiciary can play in developing the law.  But for me, judicial greatness is far more about the ordinariness of judging -- and the commonness of its duties --than anything else.