Legal Commentary

Let?s Not Confuse Longevity with Greatness

By David Bernstein

Tom Goldstein: ?For almost everyone, Justice Stevens?s retirement will be a deeply sad event. He is a great man ? a historic figure.?

I don?t think I?ve ever been sad when a Supreme Court Justice has retired. Surely hanging on like Stevens for thirty-five years until age ninety is long enough to suit anyone. There?s a fine line between distinguished long term service as a Justice, and clinging to power well-beyond seemliness, and it would almost certainly be better for the Supreme Court if more Justices emulated Souter and O?Connor, and fewer Rehnquist.

Stevens has been around a long time, and has inevitably written some important opinions as a result, but ?greatness? is not an adjective that comes to mind when I think of his career. It?s not that I don?t think there have been ?great? Justices whose jurisprudence I profoundly disagree with: Brandeis, Brennan, Holmes, and Warren, all come to mind easily. I just don?t see any reason to put Stevens in that category.

And I?ve never gotten over just how ridiculous his reasoning was in his dissent in Texas v. Johnson, the flag-burning case, among the most embarrassing opinions of the last twenty-five years. Beyond that, he has been a competent, hardworking, sincere, and somewhat idiosyncratic (especially earlier in his career) Justice. But let?s not confuse longevity with greatness.

Full post as published by The Volokh Conspiracy on February 23, 2010 (boomark / email).