Almost every constitutional law scholar—Left, Right, and center—agrees that the U.S. Supreme Court’s Establishment Clause jurisprudence is, to put it kindly, confused. Much of the blame for this mess can be laid at the feet of Everson v. Board of Education, which turns 70 this year.
My last post argued that Justice Hugo Black was not the most overrated justice and in fact was a first rate justice. I thought I would comment here on attempts to rate Justice Black as a justice – a matter that was recently debated by Will Baude and David Bernstein of the Volokh Conspiracy.
I always have a hard time with lists of great justices or great presidents, because it is always difficult for me to determine what are the appropriate criteria. As a libertarian, I have certainly been upset by the liberal or progressive historians or law professors selecting justices or presidents based on their own politics. Its fine if people want to rate officials based on their politics; the raters, however, should make clear that is what they are doing.
Attempts at nonpolitical criteria avoid the problems of political ratings, but introduce other challenges. One might judge presidents or justices based on how consequential they were, but unless one smuggles in political criteria, one can be an enormously bad president or justice and be very consequential.
Will defended Justice Black on grounds of “historical significance and legal ability.” Historical significance appears to be nonpolitical. Legal ability could be political or nonpolitical, depending on how one understands legal ability.
Cass Sunstein has a column arguing that Justice Hugo Black “who served from 1937 to 1971, is the court’s most overrated justice.” I strongly disagree with Sunstein (hardly the first time); I think Black is one of the best justices who served during the middle of the 20th century.
Sunstein likes Black’s generally liberal decisions, but he is critical of Black’s methodology of textualism and originalism. Sunstein begins with Black’s textualism, writing:
Too much of the time, Black claimed that the text of the Constitution required a particular result, when it did nothing of the kind. He famously defended his free speech absolutism by noting that the First Amendment “provides, in simple words, that ‘Congress shall make no law … abridging the freedom of speech, or of the press.’ I read ‘no law … abridging’ to mean no law abridging.”
But Sunstein rightly points out that the key question is what “freedom of speech” means and many laws that interfere with speech may not interfere with freedom of speech.