Legal Thinkers Poll
In our January|February issue, Legal Affairs asked its readers who they think the country's most influential and important legal thinkers are. We thought we might be sparking a controversial conversation, and we were right: Readers expressed their opinions through letters, e-mails, and at least one newspaper article written to rally support for a local candidate. Our call also reverberated in the blogosphere, where we were roundly criticized for list-making. Look for bloggers to change their tune when they see how well-represented they are on our list.
Polling is a tricky science, but we were heartened by the strong sample size we received. Nearly 5,000 voters weighed in to tell us whose ideas are shaping today's legal culture. Results are of course always influenced by how you ask your question and who shows up to answer it. Our format, soliciting votes on the Internet, certainly seems to have skewed our results. Thanks to the wonders of the all-seeing Internet, we were able to notice that a great many voters arrived at our cyberspace polling station directly from the doorstep of a short list of mostly conservative legal blogs. (Makes you regret not voting for a privacy hawk like Jeff Rosen, no?) Our list lists to the right a bit, but it also interestingly betrays a presumably non-partisan bias among voters toward judges and academics over journalists and other commentators. Our readers seem to think those who interpret law are more influential than those who report on it.
Our final results are divided into three categories of influential legal thinkers: academics, judges, and commentators. We've chosen one thinker in each category to highlight with a short profile, pitched to answer a new question, "What makes this thinker influential?"
Peerless JuristMost members of the current Supreme Court are known for something besides their legal reasoning. Sandra Day O'Connor was the first woman on the court, Ruth Bader Ginsburg was the second, and Clarence Thomas is the justice who survived a brutal confirmation process. If his peers on the court are known for who they are, Antonin Scalia is known for what he does. What he does is write smart and interesting opinions, and write them well. Scalia has become influential the old-fashioned wayhe's earned it.
Scalia claims to ground his judicial philosophy in originalism, adherence to the constitutional ideals laid out by the nation's founders. During his 18 years on the court, he has helped make originalism first respectable and now ubiquitous in the legal academy.
Scalia's detractorsand they are numerousnote that Scalia breaks with originalism when reading the Constitution with a magnifying glass doesn't suit his political purpose. They cite, for example, his ruling against affirmative action without appearing to consider the original meaning of the 14th Amendment. By dismissing Florida state law in Bush v. Gore, his enemies say, he similarly betrayed federalism, another philosophy dear to his heart.
But there is one ideal Scalia never strays from: clarity. His opinions are lucid and well structured, and he eviscerates his colleagues for muddling arguments and ducking big questions. To the delight of law students, legal scholars, and anyone who's read one of his opinions or listened to him during oral arguments, though, Scalia eviscerates with style and a sense of humor. Scalia once declared victory while leading a tennis match 5-4a testament to his wit and his affinity for winning.
"On a bench lined with solemn gray figures who often sat as silently as pigeons on a railing, Scalia stood out like a talking parrot," wrote the Los Angeles Times' Supreme Court reporter David Savage in 1992. According to our poll, the justice still makes his admirers coo.
Boy WonderRichard Posner was once the guiding light for legal academics charting a path to public intellectualism. His model: Augment a stellar scholarly reputation with a second career as a judge or lawyer; contribute regular commentary to places like The New York Times and The New Republic; please the media with a strong opinion on practically everything; and churn out a new book every six months (or at least make it feel like every six months). The rapid rise of Professor Eugene Volokh, however, suggests a new path. Not yet 37, Volokh has become famous enough to appear on our list despite never having written a general-interest book or taken a high profile case to court.
Volokh, whose family emigrated from Kiev not long after his seventh birthday, is undeniably prodigious. By age 15, he had a B.S. from UCLA and was holding down a job as a computer programmer. He returned to UCLA to complete law school, landed two coveted clerkshipsNinth Circuit rabble-rouser Alex Kozinski followed by Justice Sandra Day O'Connorand then joined the faculty of his alma mater. In a little over a decade, Volokh has produced a steady stream of provocative law review articles, establishing his bona fides in such disparate fields as gun control (which he vigorously opposes), free speech (which he feels is being squeezed by sexual harassment laws), and Yiddish (which he believes is "supplanting Latin as the spice in American legal argot"). He has been a visiting scholar at Stanford and Harvard and has literally written the book on being successful at academic legal writing. According to those who track such things, Professor Volokh has been cited by his peers over 800 times, putting him in a league more or less of his own.
Impressive stuff, but enough to place him ahead of old-timers like Cass Sunstein, Ronald Dworkin, Larry Tribe, and Richard Epstein? Probably not, save for the fact that Volokh is also the founder of the eponymous Volokh Conspiracy, a blog launched in 2002. Not everything Volokh blogs about is strictly legal (posts like "Black Russian Cake" and his tireless, and tiresome, crusade against Slate's Bushisms come to mind), but in contrast to the approach of Glenn "Instapundit" Reynolds, a fellow law professor who is the USAToday of internet commentators, Professor Volokh avoids writing on topics outside his expertise. His site is now visited over 10,000 times per day. It's a pretty safe guess as to who most of those visitors are: law professors, judges, lawyers, and apparently our readers.
The Chronicles of DahliaIn 1999, in need of a last minute fill-in to cover the Microsoft antitrust trial, the online magazine Slate turned to a friend of a friend of a former staffer, a Canadian-born lawyer named Dahlia Lithwick. "No one knew a thing about her writing," recalls Jodi Kantor, an editor there at the time. In her first dispatch, Dahlia (who would soon attain one-name status among legal junkies) introduced herself, explaining that following graduation (and a clerkship she didn't mention) she passed on the corporate route and joined a family law practice in Nevada. "No difference really," she joked about the work. "Bigger belt buckles."
Until there was Dahlia, Supreme Court coverage was left mainly to belt-and-suspender types: chroniclers of the court whose dispatches tended to be dutiful, deferential, and dull. Dahlia, on the other hand, approached her coverage with irreverence. Her writing has won her more than her share of admirers (and at least one creepy internet fan page), not only for her humor but also for her willingness to have fun at the justices' expense.
Dahlia has the ability to make otherwise regal justices seem like middling actors in a small-town drama. When a notoriously clothes-obsessed Rehnquist interrupted proceedings to ask a female reporter to remove her headscarf, Dahlia wrote, "This from a man seemingly undistracted by a colleague seated three chairs to his left, lolling backward in his chair with his eyes shut." In a case about fake child pornography, Justice Scalia took issue with the suggestion of Justice John Paul Stevens that "Romeo and Juliet" sexualizes children. "Gee, you've seen a different version than me," Scalia quipped. Dahlia one-upped him: "Ten-to-1 odds that Clarence Thomas has seen the Stevens version."
For all its billowing pomp and septuagenarian jurists, the Supreme Court has never been able to fool Dahlia into thinking that its justices are all that different from, say, family-court judges in Nevada. Those judges must be thanking their lucky stars that Dahlia turned her attention to skewering SCOTUS and left them and their belt buckles alone.