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A Passion for Justice, 26 Touro Law Review 393 (2010)

Abstract

What makes a good judge or justice? The public has a need to know. But simplistic labels, such as “activist,” “liberal” and “conservative,” are both meaningless and misleading. Perhaps a former law clerk can offer a different perspective.

I served with David J. Vann as law clerk to Justice Hugo L. Black during the momentous 1953 Term of the Supreme Court. This was the year when Brown v. Board of Education1 was decided. It was also the year when Chief Justice Vinson died and was replaced by the Governor of California, Earl Warren. And it was also a year in which the members of the Court divided in a series of cases with profound implications for the future, involving unlawful police surveillance, political restrictions on the right to work, and the use of psychiatry for “enhanced interrogation” of a suspect.

I have previously written about Justice Black, but always with a sense of constraint imposed by the confidentiality of a law clerk’s position. But now that more than fifty years have passed, and now that the Court is a constant subject of political debate that is frequently based on misconceptions, I feel that the claims of history and the study of law have become paramount. For historians, the story of how the new Chief Justice began as a “law and order” judge but by the end of the 1953 Term had been transformed, with the crucial intervention of Justice Black, into the “liberal” judge of the “Warren Court,” needs to be recorded while there is still a witness able to do so. For aspiring legal academics, a close-up of one Justice’s thought processes and tactics should prove valuable. For law students I would like to provide a picture of one individual who truly loved the law. For all of the above and for the public as well, there is the ultimate test of what makes a good judge: a passion for justice.

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2010

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