The 4 Types of Supreme Court Justices

In friendship and romance, people are drawn to identifiable types. Some of us like larger-than-life figures, full of charisma, wild plans and fun. Some people favor quiet types, projecting wisdom, calm and a wry sense of humor. Still others prefer those who seem loyal and reliable, the kind you can trust in a crisis.

We are used to thinking of constitutional law in ways that have become predictable, even tiresome. Some Supreme Court justices are “liberals,” while others are “conservatives,” and so constitutional law is not so different from a presidential debate, but camouflaged in impenetrable legal jargon. (In the memorable words of Senator Ted Cruz, a nominee from a Democratic president “votes like a radical liberal nutcase.”) Alternatively, we might insist that some justices are “activists,” while others believe in “restraint.” It’s not always clear what these terms mean, but no matter who uses it, “activist” is almost always pejorative. Finally, we like to say—fairly, but not always informatively—that while some justices believe in “originalism,” interpreting the Constitution to mean what it meant when ratified, others believe in a “living document,” whose meaning evolves over time.

These distinctions capture some important differences in the ways that different Supreme Court justices think and act, but they also miss something fundamental about judicial inclinations and self-understanding. No less than in friendship and romance, constitutional law, it turns out, is dominated by specific types, or personae. Below the surface, they can be found in every era—and they will inevitably play a large role once again in the Supreme Court’s coming term.

A review of our history, and of the great battles that have defined our nation, reveals that if we want to understand our constitutional order, we need to focus on these personae. For all their differences, there are important commonalities between yesterday’s defining liberals, like Earl Warren and Thurgood Marshall, and today’s defining conservatives, like Antonin Scalia and Clarence Thomas. If we don’t understand the personae—and what draws different people to one type or the other—we will be trapped in categories and clichés that give us a hopelessly incomplete picture of constitutional law. We will fail to understand past cases, or appreciate the different possibilities in future ones.

There are just four personae, so let’s introduce them: heroes, soldiers, minimalists and mutes.

Heroes might be the most familiar. As believers in big, bold strokes, they do not hesitate to use the Constitution to strike down acts of Congress and state governments. They believe in big principles, and in big rulings in the service of those principles. Justice Anthony Kennedy often plays the hero. After writing several other opinions advancing gay rights over the years, he wrote the court’s opinion last term, Obergefell v. Hodges, striking down state bans against same-sex marriage. Brown v. Board of Education, invalidating racial segregation, was unquestionably heroic, as was its author, Chief Justice Warren, the iconic judicial hero.

While some justices, such as Kennedy and Warren, have strong heroic tendencies, no member of the court is consistently heroic. Justices tend to pick their spots, which means it is easiest to speak of heroic decisions—for instance, Roe v. Wade—rather than heroic individuals. Of course, conservative justices and rulings can be heroic, as well. Cruz and many other conservatives, alarmed by what they take as overreaching by the Obama administration, seem to want far more heroic justices, who will strike down various laws (including Obamacare) in order to restore what they see as the constitutional balance. Repeatedly voting to invalidate bans on commercial advertising and limit the power of the national government, Justice Thomas may be the most heroic member of the current court. My vote for the most consequential heroic ruling in recent decades would go to the 2010 Citizens United decision, invalidating restrictions on corporate contributions to campaigns in the name of free speech. The court’s majority has also embraced heroism in protecting the individual right to possess guns. The assault on affirmative action programs, undertaken in the name of color-blindness, is unquestionably heroic, too.

Soldiers are at the opposite pole from heroes. They do not want to invalidate the acts of democratically enacted branches. They believe in following orders. They want to defer to We the People. They agree with Justice Oliver Wendell Holmes, history’s greatest soldier, who wrote, “If the people want to go to hell I’ll help them. It’s my job.”

Chief Justice John Roberts shows strong soldierly tendencies. In the opinion in favor of upholding Obamacare in 2012, Roberts emphasized the importance of judicial respect for other branches of government. Dissenting from the court’s same-sex marriage ruling earlier this year, Justice Antonin Scalia, too, spoke for the soldier, emphasizing what he saw as the court’s intrusion on the people’s “freedom to govern themselves.” Some people have defended affirmative action on the ground that judges should defer to the judgments of university administrators, who, in the view of many people, have the greatest expertise about educational needs.

Minimalists, meanwhile, insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances. In American history, Justice Felix Frankfurter was a great defender of minimalism, especially in the area of presidential power, where he wanted the court to avoid sweeping rules. Justice Sandra Day O’Connor was also a great minimalist. Whether the issue involved abortion, free speech or affirmative action, she liked to focus on particular facts, not big ideas or abstract theories.