Thursday, April 15, 2021

History of best and worst at the US Supreme Court -- updated

Scotusblog, the American blog about the Supreme Court of the United States [whence "SCOTUS"] has been running a March madness-type bracket competition to determine the champion justice of that court. 

Currently John Marshall, CJ 1801-35, the first great judge of the court and effectively the one who secured for it the authority to make constitutional rulings that could not be overturned by Congress or the president, is going up against Earl Warren, CJ 1953-69, leader of the Warren Court's "constitutional revolution" in civil rights jurisprudence. 

Warren had to beat out the renowned Louis Brandeis (SC judge 1916-39), so two heavyweights for sure.  But in the semis, Marshall was up against Antonin Scalia (SC judge 1986-2016) whose death led to the debacle when the Republican Senate refused to consider the replacement nomination from President Barack Obama. I thought Scalia was mostly famous for his anti-gay and anti-black rulings, and for his way of always produced the most reactionary interpretations possible of the US constititution and calling it a legal philosophy. His "originalism" has not been taken very seriously as a theory of jurisprudence outside the United States, but there it remains significant enough to carry Scalia to the semi-finals, I guess.

As a counter-weight, the podcast 5-4 Pod, with a more lefty/critical take on the court, is running its own contest to determine the worst Supreme Court justice. Looks like Roger Taney, whose Dred Scott decision helped launch the US Civil War, will run away with it. Scalia was not listed in the opening round of sixteen.

Who might be candidates in a Supreme Court of Canada version of this?  Frankly, I fear there are too few justices of enough renown (or ill-repute) to make up a bracket, and too few scholars to vote on it.
I could see Bora Laskin going up against Beverley McLachlin in one semi-final, and Ivan Rand facing, hmm, Brian Dickson in the other. Dickson was the progenitor of the "living tree" doctrine of constitutional interpretation that has mostly prevented originalist notions in Canadian jurisprudence. Laskin the winner?

But those are about the only names I can come up with as possibilities in Canada. The competition hardly starts until 1950, when the court got out from under the Judicial Committee of the Privy Council in London, so the pool is not large.

Any nominations? 

Update, April 16:  Alan B. McCullough asks:

Was Brian Dickson the progenitor of the "living tree" doctrine of constitutional interpretation? Is the phrase, and the doctrine, not normally attributed to Viscount Sankey of the Judicial Committee of the Privy Council in the Persons Case of 1929? Sankey may have felt comfortable in adopting this position given the history of JCPC decisions which arguably strengthened provincial powers and undermined the idea of originalism in Canadian jurisprudence.

Yes, you are absolutely right in crediting Viscount Sankey.  

Definitely the phrase begins with Sankey and the Persons Case of 1929. To justify overthrowing a long string of judicial rulings that had declared that a piece of legislation that said "persons" obviously meant "men" and should be interpreted as such, Sankey wrote, "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits." That is: since the status and public role of women had evolved since the words of the constitutional text were written, interpretation of its words must reflect that changed situation."

This is beautifully set out in Robert Sharpe and Patricia J. MacMahon's 2008 book The Persons Case.

But Sharpe and MacMahon go on in that book to show that the "living tree" argument presented by Sankey in 1929 had almost no influence upon interpretations of the Canadian constitution during the next fifty years -- either at the JCPC or, after 1950, at the Supreme Court of Canada. It was Chief Justice Dickson's court that breathed life into the living tree and made it the foundation of the Supreme Court's interpretions of the constitution and the brand-new Charter of Rights and Freedoms. Hence, I was speculating, Dickson's claim to be considered in a "best of" ranking.  

Sharpe, with Kent Roach this time, is also the author of a large 2003 biography of Dickson, Brian Dickson: A Judge's Journey 



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