…I doubt it, but history suggests that Justices who were out of touch with their contemporaries periodically appear rather favorably to future generations. I was culling through my old copy of “The Supreme Court in US History” for some other posts (here and here) when I discovered this interesting passage about the great Chief Justice John Marshall:
For at least thirty-one out of thirty-five years as Chief Justice, Marshall had been out of sympathy with the political views predominant among the people, and inspiring the statesmen at the head of the Government. Moreover, he had never been a lawyer deeply grounded in the common law; and he had possessed a highly conservative nature and mental attitude in view of the changes and reforms which were now taking place in the economic and social conditions, and the liberalization of political sentiment and process which was marking a new era in the county’s development, he was clearly out of touch with the temper of the times and less fitted to deal with the new problems of the day than with the great constitutional questions of the past.
Admittedly, history usually smiles down upon justices who were left of their contemporaries (Marshall) and frowns upon justices who were right of the mainstream at the time (Taney.) When I read Warren’s refreshingly honest account of Marshall’s later years, I am reminded that Supreme Court justices are valuable precisely because they serve unnaturally long terms and resist, for better or worse, change that would have been unimaginable years earlier. Even though I’m not a particularly vocal fan of Justice Scalia’s judicial philosophy, I must admit that there is value in having a diverse collection of Justices sitting on the court. Justice Scalia’s rejection of recent trends such as civil rights, free speech, and democracy may seem archaic to some, but he’s just a relic of the past and we should love him for it. Bless you, Antonin, and thanks for the good times.