Rank Recent Justices(1958-onwards)

[Geoffrey Howe]

I have to say that I’ve always thought Potter Stewart is the most underestimated. His knack for phrases that were very memorable and/or perfectly encapsulated a case was incredible - see e.g.
cruel and unusual in the way that being struck by lightning is cruel and unusual (Furman v. Georgia).
one day in prison for the ‘crime’ of having a common cold would be cruel and unusual (Robinson v. California)
swift justness demands more than just swiftness (I forget the case)

Also, his short concurrence in Roe v. Wade seems to do more to explain the basis for the holding more than the majority does.

Other than Stewart, I think highly of Stevens and Souter. Stevens was apparently very impressed by Stewart.

I suppose I have a lot of respect for Scalia even if I very much disagree with him.

[Geoffrey Howe]

I have to say that I’ve always thought Potter Stewart is the most underestimated. His knack for phrases that were very memorable and/or perfectly encapsulated a case was incredible - see e.g.
cruel and unusual in the way that being struck by lightning is cruel and unusual (Furman v. Georgia).
one day in prison for the ‘crime’ of having a common cold would be cruel and unusual (Robinson v. California)
swift justness demands more than just swiftness (I forget the case)

Also, his short concurrence in Roe v. Wade seems to do more to explain the basis for the holding more than the majority does.

Other than Stewart, I think highly of Stevens and Souter. Stevens was apparently very impressed by Stewart.

I suppose I have a lot of respect for Scalia even if I very much disagree with him.

Welcome to the forum!

Thank you - and something of a shame the voters didn’t concur in your view of Nick Clegg, what with the rise of Messrs Johnson and Corbyn.

[Geoffrey Howe]

I have to say that I’ve always thought Potter Stewart is the most underestimated. His knack for phrases that were very memorable and/or perfectly encapsulated a case was incredible - see e.g.
cruel and unusual in the way that being struck by lightning is cruel and unusual (Furman v. Georgia).
one day in prison for the ‘crime’ of having a common cold would be cruel and unusual (Robinson v. California)
swift justness demands more than just swiftness (I forget the case)

Also, his short concurrence in Roe v. Wade seems to do more to explain the basis for the holding more than the majority does.

What do you think of his lone dissents common to Establishment Clause cases?

I haven’t really thought much about the Establishment Clause, though I suspect I’m less ‘liberal’ on it than other provisions. His dissent in Engel v. Vitale had a good phrase too though:
‘I cannot see how an "official religion" is established by letting those who want to say a prayer say it.’ I’m quite surprised he and Harlan II were on opposing sides on the issue generally.

[Geoffrey Howe]

I haven’t really thought much about the Establishment Clause, though I suspect I’m less ‘liberal’ on it than other provisions. His dissent in Engel v. Vitale had a good phrase too though:
‘I cannot see how an "official religion" is established by letting those who want to say a prayer say it.’ I’m quite surprised he and Harlan II were on opposing sides on the issue generally.

His dissent there is decent, but the height of his jurisprudence in dissents, in my opinion, is on Abington School District v. Schempp. I’m rather surprised White didn’t join him in it, although I suspect he probably came to agree with Stewart there.

“If religious exercises are held to be an impermissible activity in schools, religion is placed in an artificial and state-created disadvantage.... And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at least, as governmental support of the beliefs of those who think that religious exercises should be conducted only in private.”

I believe there is also one where he identifies early on that there will be a conflict between free exercise and establishment (as construed by the Court) - Sherbert v. Verner , concurring in judgment.

As for his dissents, Stump v. Sparkman (judicial immunity) is eloquent and unusually emotional (listen to the oral presentation). I haven’t read the majority, so don’t know whether I agree.

White one would expect, yes, though he concurred in the creationism case later on. As I said, I might have expected Harlan II too given how often they agreed, and Harlan was the more ‘conservative’.

[Geoffrey Howe]

I haven’t really thought much about the Establishment Clause, though I suspect I’m less ‘liberal’ on it than other provisions. His dissent in Engel v. Vitale had a good phrase too though:
‘I cannot see how an "official religion" is established by letting those who want to say a prayer say it.’ I’m quite surprised he and Harlan II were on opposing sides on the issue generally.

His dissent there is decent, but the height of his jurisprudence in dissents, in my opinion, is on Abington School District v. Schempp. I’m rather surprised White didn’t join him in it, although I suspect he probably came to agree with Stewart there.

“If religious exercises are held to be an impermissible activity in schools, religion is placed in an artificial and state-created disadvantage.... And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at least, as governmental support of the beliefs of those who think that religious exercises should be conducted only in private.”

I also saw that he dissented from the bench in a patent case, Parker v. Flook; written by none other than Justice Stevens. You wouldn’t get an oral dissent in a patent case now.
He also dissented orally from another Stevens opinion, on obscenity I think. Stevens clearly changed over the years.