Warren, Black, Marshall, Douglas -- Obama Got It Right. Hooray.

Some of the criticism being leveled against Sonia Sotomayor is that her opinions aren't intellectual enough, that she is not intellectual enough in her legal approaches, that she's written no legal decisions that will live forever, and that her scholarship, writing and books are second-rate.

The law, notwithstanding what academics say, is not nuclear physics. I have taught law at Columbia at Yale, written five books including two on the Supreme Court, lectured widely at law schools and other places, and feel sufficiently expert to say that in writing the great legal decisions of our time, it was the personality of the writer, the life of the writer, the experiences of the writer, that determined the brilliance of the decision.

The great cases of the twentieth century, Brown v. Board of Education, one man one vote, reapportionment, and the pro-choice decisions are often short three-paragraph opinions. You don't need what has become a recent practice in the Supreme Court of three or four judges writing eighty pages, when we all know, before they start to write, what their conclusions will be.

Brown v. Board of Education, in one page, said that segregation was wrong. Earl Warren, Hugo Black, Thurgood Marshall, William Douglas could say what they wanted to say in two paragraphs. "Congress shall make no law" does not require a complicated interpretation. Segregation is wrong because the Constitution says it's wrong. Warren, Marshall, and Black were not great decision writers. Most of their language does not linger over time. But what they brought to the Court was unique. Warren, a governor; Black, a trial lawyer; and Marshall, chief counsel for the NAACP, brought their life experiences into every case. Douglas brought his radicalism.

Sonia Sotomayor brings to the Court the possibility, perhaps even only a remote possibility, of emulating these four great judges. That is more than enough reason to rejoice and to hope that Obama's choice will dramatically affect the lives of every American in the most wonderful possible way.

Comments

[oncethere]

The truth is that we all put our personal feelings and life experiences, to a degree, into the decisions we make, though Republicans try to deny that. It is that denial, that pretense of Complete Objectivity, that lack of self-awareness that is behind much of Republican dis-honesty and inconsistency.

[marecek]

Thank you for that comment, you really hit the nail on the head.

[lastpost]

Perhaps the reasonability of our assertions could be better evaluated by devising means to test them.
Take for example: White supremacy.
If valid, then the dumbest white individual would have to be more intelligent than the smartest non-white individual. Does available evidence support such a case?

[marecek]

Clearly not!

[Outsideadog]

The available evidence suggests that even the dumbest species hadn't organised themselves to destroy the planet. Even the locusts and parasites seem to limit themselves.

[Outsideadog]

I'd been a little wary that my daughter is studying Law/Journalism, given the strangeness of the last few decades, in terms of the abuse of ideas like the 'spirit of the law' and what's required by the Fourth Esate. Maybe it's actually a good time, as there seems to be a kind of renewal happening in both fields. Do you think?

[UNCLEJOE]

When it comes down to making decisions about any subject be it law, marrage, buying a home or raising a pet, it is not a specialized book training that gets the best results with the right decisions, nor is it the I. Q. of the practitioner, nor is it a committe of professionals in the specified field dealing with the problem.

There is one faculty of the human being that is a gift, just like the gift of dancing, or inventing or a facility of languages or the gift of any talent that you are blessed with, and this talenent does not require seven post years of medical school or years of experience, though learning and experience enhance this gift to a minor degree. This gift is the blessing of inately being born with an acute 'Common Sense', which cannot be taught from a book although a study of 'Logic' is helpful in some cases.

So when we judge professionals, politicians and blue collar workers, why is this talent of 'COMMON SENSE' never considered in the equation when evaluationg a persons' worth or qualification for a given position, and especially when selecting a person to the Supreme Court where decisions often affect the lives of untold numbers of individuals for an untold period of time ?

[tomancones]

Insightful and well said.

[StanleyKrute]

Thanks Mr. Garbus for a great post.

And thanks Mr. President for a great nomination.

The GOP rump goes nuclear on this one at peril of shrinking even further into irrelevant madness. Go Rush Newt Cheney Sarah Mike Michael Mitt go !!!!

-- stan

[Annoula]

That's right!
Just let the GOP's obsolete leaders and its new crop of "rising stars" continue parroting their recycled talking points and make up non-issues against any Obama appointee just because it's the only power they have left...
It's clear they have NOTHING else to offer to the American people.
I confess I am enjoying the show...
Watching them drown in their own vitriol, sinking more and more into irrelevance after 8 years of blatantly abusing power is soooo much fun!

[zell]

I agree with you Mr. Garbus. I also believe that Mr. President got it right. I commend him for the nomination of Judge Sotomayor. May the Senate cofirm her ASAP!

[Tena]

"that in writing the great legal decisions of our time, it was the personality of the writer, the life of the writer, the experiences of the writer, that determined the brilliance of the decision."

To be honest with you, I am shocked that you felt you had to say it - shouldn't this be terribly obvious?

I was a criminal defense lawyer, appellate specialist and maybe it's just obvious to me. But god, writing is writing, really. There are rules that abound whenever you write for the law, but it's still the person picking the words in between those required phrases who makes the difference in the opinion or the brief or whatever.

It would be the greatest thing I've seen in years if we got another Douglas - we haven't seen that caliber of justice since, well, Douglas. IMHO.

[LMPE]

Not intellectual enough?

After eight years of George W. Bush, anybody should think first before saying that.

[johnr49]

I love this famous quote from Thurgood Marshall on the occasion of the bicentennial celebrations of the US Constitution:

"the government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today."

Compare that statement comprising history and common sense with typical right-wing ideology!

[marecek]

Well, I strongly disagreed with Marshall, and I am a sorry leftie. He was placing today's standards upon the past, which is intellectually dishonest (as it is unhistorical in its assessment of a historical issue) and simply accomplishes nothing. It is fine to say from the perspective of 1987 that the 1787 Constitution fails in many respects to meet our current standards, but if we consider it in the context of the times when it originated, it was a revolutionary document that made great advances from what were the norms of the day.

[marecek]

This was kind of a lame comment, but the main point he was trying to make was sound - that professors and professional judges do not necessarily make for the Supreme Court Justices who decide and reason the groundbreaking decisions that form the basis of our public morality. For all his academic brilliance, Black and Warren's colleague, Prof. Felix Frankfurter, was little more than an average Justice, IMHO. Mr. Garbus is overlooking one of the great Justices of the post-war era - Jackson, who was a great opinion writer. Also, I have to disagree with him - Black was also an excellent opinion writer. For all his many virtues, admittely Warren was a poor opinion writer (including Brown).

[escorpion]

You say this was a lame comment, but you don't say why you think so. For those of us who weren't blessed with a brilliant legal mind like yours, an explanation would be helpful.

[marecek]

Sorry about that. I guess that was just an off the cuff reaction because I thought Garbus really oversimplifies matters. In fact, many experts consider that one of the great flaws of the Warren Court was that it too often issued far too brief opinions that explained nothing, thus making the law more vague rather than clarifying it. I agree that the Court now has somewhat gone to the opposite extreme of over-long opinions that are so intricate in their reasoning that they make the law inaccessible because too complicated (and perhaps incoherent). I guess overall my reaction would be that Garbus tries to squeeze a very complicated problem into a short blurb, so I considered it lame. But, as I pointed out, I do agree with what I take to be his main point, that the greatest Justices and the greatest legal opinions do not usually come from Justice-Scholars, but from Justice-Po­liticians.

[dst1]

We should all be so lucky............