The Best We Can Do

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

A couple months ago I wrote about the ten worst Supreme Court justices in United States history. Remarkably, no current justice made that list; for a couple of them, there’s still time.

But the same fellow who compiled that list — Bernard Schwartz in “A Book of Legal Lists” — also had a list of the ten greatest Supreme Court justices.

All of them were tremendous legal reasoners. Were they also tremendous human beings?

At the top of his list — maybe of everybody’s list — is John Marshall, fourth Chief Justice of the United States.

Marshall effected perhaps the greatest property theft in history, ruling in 1823’s Johnson v. M’Intosh that American Indians did not own their land, that their right to it was defeated by the “laws” of discovery and conquest. Indians may occupy land; they may not possess it. Thus was established as manifest destiny the right of the republic to expand to the Pacific, and aboriginal occupants to be driven by treaty to smaller and usually harsher reservations.

Oliver Wendell Holmes is second on the list of our greatest justices. O.W. Holmes, who said in Buck v. Bell in 1927 “three generations of imbeciles are enough” as Constitutional justification for the forced sterilization of “feeble-minded” inmates of state mental hospitals.

Third on the list is Earl Warren. As attorney general and governor of California during World War II, he ruthlessly supported the removal from their homes and jobs of Americans of Japanese descent to intern them behind barbed wire under armed guard. He explained himself plainly: “If the Japs are released, no one will be able to tell a saboteur from any other Jap.” As Chief Justice, he later strongly defended Korematsu v. United States. He expressed deep regret at all that only in his posthumously published memoirs.

Those are just the first three. The three greatest.

I haven’t the heart to go on. But if you do, and get all the way to number ten, fair warning: it’s Chief Justice Roger Taney.

Dred Scott ring a bell?