Because of all of the talk about Rehnquist stepping down and who Bush will appoint, etc., I figured I'd write a post about my ideal Supreme Court. But not just any Court -- this is my ideal Court of remonstrating interlocutors. That is, I might just prefer one Randy Barnett and 8 of his clones who would never write a dissent, but that's not the point of this post. The point is to have 9 jurists, each with distinct intellectual attributes and each who would reason with one another, challenge eachother, and form unique and interesting "thought-coalitions." And of course, the decision outcomes of this Court would be consistent with the type of (libertarian, rights-oriented) jurisprudence to which I subscribe.
In terms of the current Supreme Court, only 2 made the cut, the rest are dismissed.
1. Justice Kennedy: For his courageous and beautifully poetic Lawrence opinion. And also for his "mystery of life" passage that so pissed off social conservatives like Robert Bork:
“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
2. Justice Thomas: The closest thing the Court now has to a libertarian originalist. Thomas is wrongly categorized as a "Scalia clone." Thomas believes that the Declaration of Independence and its organic natural law ought to be incorporated into Constitutional jurisprudence. That means that individuals have an "unalienable right" to "life, liberty and the pursuit of happiness." And of course if the "pursuit of happiness" is to mean anything, it means happiness as an individual defines it for himself (we can see a connection between the Declaration and Kennedy's "mystery of life" passage).
Now I know that Thomas might not quite understand the ideals of the Declaration in this way, but the other members of the Court can remonstrate with Thomas and perhaps persuade him that ideals of the Declaration, logically and consistently applied, point us in that direction.
Here are the non-Court members I would appoint. Note, my list is skewed towards those thinkers of which I am familiar. I am sure there are some good choices that I am passing over.
3. Randy Barnett: One of the brightest, most passionate and prominent libertarian-oriented natural rights advocates, who defends his theory with sound historical analysis. The Constitution grants, according to Barnett, "islands of government powers 'surrounded by a sea of individual rights.'" (quoting Princeton's Steven Macedo).
4. Richard A. Epstein: What Randy Barnett is to liberty, Richard Epstein is to property. Epstein brings not only Lockeanism but also Utilitarianism and social welfare economic analysis to the table. Expect to see debates like this between Barnett and Epstein on this Court.
5. Richard Posner: This blog explains why:
[A] strong candidate must be one who fares well in the measurements that will be used in evaluating nominees. These will include a judge's intelligence, understanding of law, prudence, ability to work with other judges, independence, and willingness to subordinate individual preferences to the rule of law.
Judge Posner is exemplary in nearly every category. He is recognized as one of the greatest legal minds of his generation. He has been instrumental in the widespread use of economic principles in legal scholarship and in court decisions. He has also written extensively about jurisprudence and about substantive law in dozens of areas ranging from employment law to antitrust to torts, and everything in between.
Judge Posner's independence from any political thrall is unquestioned. There is no doubt that he calls the cases as he sees them. One may disagree with individual judgments -- I often disagree with his conclusions -- but his opinions are always articulate and well-reasoned. And on the critical question of "will this judge simply vote along party lines?", the answer is a resounding "no." Whatever one says about Judge Posner, he cannot be accused of simply voting a straight Republican ticket.
He's our modern-day Oliver Wendell Holmes. It would be unthinkable to exclude him from this Court.
6. Eugene Volokh: Both a Socrates and a Saint of the blogsphere. One of the most brilliant, and well-established legal minds in the academy already at his relatively young age, in his mid-30s. He details a good deal of his constitutional jurisprudential philosophy here. He and Posner would make up the "Holmesean" wing of this Court.
7. Michael McConnell: Ed Brayton gives us the reasons why:
McConnell is solidly conservative, but not in a partisan manner. He's an intellectual conservative, not a political conservative and that carries much weight with me....He has broad support from legal scholars, including many prominent liberals, and he has proven to be a consistent conservative rather than a partisan one (for example, he publicly opposed the impeachment of Bill Clinton and spoke out strongly against the Bush v. Gore Supreme Court decision). Given the other potential choices, McConnell is about as good as liberals or libertarians could expect to get as a nominee given the current configuration.
McConnell is definitely one of the most interesting, brilliant and independently minded conservative jurists out there. And any conservative who can get support from this broad coalition of legal scholars (indeed, many of them the most prominent legal scholars in the nation) has something really special going for himself.
8. Akhil Reed Amar: Yale law professor, one of today's most influential legal thinkers, and brilliant scholar. He has written the seminal book on the Bill of Rights and their relationship to the 14th Amendment, which gives a strong originalist justification for the active role that the modern Court has taken in applying these rights through the 14th Amendment to many areas of life (contra Robert Bork, Lino Graglia, and the late Raoul Berger who argue that the Fourteenth was intended only to grant limited rights of citizenship to blacks -- arguably not even the "right" to attend a non-segregated school -- and nothing else).
9. I haven't decided yet. That's where, perhaps, other readers, bloggers and commenters can help me out. I'm looking for someone with distinct intellectual contributions, not just a "clone" or even someone too similar to one of the above eight.
(BTW: I know I overused terms like "influential," and "brilliant," but those are two of the criteria for my Court and I think the descriptions were accurate.)