Here comes da' judge!

Ever read an op-ed piece that manages to convince you of the exact opposite position?

That neat feat was pulled off today in The New York Times by Harvard law professor Noah Feldman, who attempted to argue for the proposition that “many of the greatest [US Supreme Court] justices have been irascible, socially distant, personally isolated, arrogant or even downright mean.” Instead, I finished the short essay thinking that Prof. Feldman’s idea of “greatest” is misshapen.

At root, the essay is merely a promotional flyer for the professor’s forthcoming book on Franklin Roosevelt’s Supreme Court appointees. Feldman marshals a lot of anecdotal evidence for those “greatest” justices that fall outside of this period. For example, no one, I believe, would ever claim Stephen Field to be a “great” justice, his mastery of verbal abuse notwithstanding.

Yes, Prof. Feldman’s essay reads like a strange assortment of historical bric-a-brac until he comes to the New Deal era justices William O. Douglas and Hugo Black. Then his rhetoric and approach changes; he supplies more detail and clearly is more personally invested in the stories of these men.

But his personal interest in Douglas and Black doesn’t make them “great” in any sense, nor does the ability to find “the right to privacy in the ‘penumbras’ and ‘emanations’ of the Bill of Rights,” as in Douglas’ case, or attempts to wash away the taint of a Ku Klux Klan affiliation, as in Black’s.

If you belong to the choir to whom Prof. Feldman is singing, then I suppose you might be willing to pass over his banal approach and appreciate the ideology behind it all, but make no mistake: great judges don’t dream up new rights out of whole cloth or overcompensate for their personal failures through jurisprudence.

Great judges are rather like great baseball umpires: you’re hardly aware that they’re there at all.