St. Mary's Law Journal
One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren.
Academics, pundits, and contestants for control of the Court contribute to this myth by continuously speaking of the importance of the Court and its members to American society. Yet, this belief in the importance of Supreme Court nominees and members is based on a misguided view of the Court, and the costs of this investment may prove great. In a highly legalistic society, any conflation of legal and moral duties presents enormous problems, and the moral authority claimed by members of the Court and attributed to them by members of society undeniably contributes to this conflation. As long as the Court is considered to have a moral authority, the contest for the Court will be a bitter struggle, and the consequences may fail to be recognized until they are an immutable part of American history.
Michael S. Ariens, Constitutional Law and the Myth of the Great Judge, 25 St. Mary’s L.J. 303 (1993).