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A March Madness tournament to choose the greatest Supreme Court justice

March Madness is upon us, and even the Supreme Court will be hosting an NCAA showdown later this month. But what would happen if the tournament brackets were filled with justices?

We want to find out.

Welcome to SCOTUS bracketology: a crowd-sourced quest to name the greatest justice of all time, as chosen by SCOTUSblog readers.

In the 232-year history of the Supreme Court, 115 people have served as justices. We’ve narrowed that list down to a field of 16 former justices who have credible claims to greatness, and we’ve seeded each member of this “Supreme 16” into an NCAA-style bracket. (To read about how we selected and seeded the justices, and the many ways “greatness” might be measured in this context, see our bracketology FAQs.)

Now the rest is up to you. Over the next three weeks, we’ll run a series of reader polls to determine which justices advance in each round. So get out your chalk (or your Cinderella slippers), brush up on your Supreme Court history, and let the Round of 16 begin. The polls for this round will close at midnight on Sunday, March 21.

1 John Marshall vs. 16 Sandra Day O’Connor

The first match-up pits a founding father against the woman who broke the court’s glass ceiling. John Marshall’s 34-year tenure as the fourth chief justice formed the foundation of American law. In Marbury v. Madison, he announced the principle of judicial review, and in opinions like McCulloch v. Maryland and Gibbons v. Ogden, he cemented the power of the federal government in the fledging nation. But don’t count out Sandra Day O’Connor. For nearly the entirety of her 25-year term, she was at the center of the court, casting decisive votes and writing landmark opinions upholding affirmative action, abortion rights and due process for military detainees. According to the Washington University Law Supreme Court Database, she wrote seven “precedent-altering” opinions, among the highest of any justice in the tournament.

Who should advance?

  • 1 John Marshall (chief justice, 1801-1835) (79%, 6,552 Votes)
  • 16 Sandra Day O’Connor (associate justice, 1981-2006) (21%, 1,777 Votes)

Total Voters: 8,329


8 Charles Evans Hughes vs. 9 John Marshall Harlan

The justices who face off in the 8-versus-9 contest might not be household names, but both were visionaries. Charles Evans Hughes served two non-consecutive stints on the Supreme Court, and it was in his second stint – as chief justice during the 1930s – that he made an indelible mark. In 1937, with the country reeling from the Great Depression and President Franklin Roosevelt seeking to pack the court, Hughes (along with Justice Owen Roberts) “switched in time” and voted to uphold a minimum-wage law, repudiating the laissez-faire economics that had guided the court up to that point. In doing so, Hughes averted a political crisis with the court at the center. John Marshall Harlan, for his part, was one of the greatest dissenters in Supreme Court history, especially on issues involving civil rights. He wrote the lone dissent in Plessy v. Ferguson, which upheld racial segregation in 1896 under the “separate but equal” doctrine, and he consistently dissented from a series of rulings known as the Insular Cases, which held that constitutional rights do not automatically apply in newly acquired American territories. (Note: We’re talking about the first John Marshall Harlan here, not his grandson, John Marshall Harlan II, who also served on the court.)

Who should advance?

  • 8 Charles Evans Hughes (associate justice, 1910-1916; chief justice, 1930-1941) (27%, 2,042 Votes)
  • 9 John Marshall Harlan (associate justice, 1877-1911) (73%, 5,408 Votes)

Total Voters: 7,450


5 William Brennan vs. 12 Ruth Bader Ginsburg

Two liberal lions meet in the next match-up. William Brennan was the intellectual engine that drove the court during its most liberal era, and he accumulated a thick portfolio of landmark opinions to show for it – New York Times v. Sullivan and Baker v. Carr, to name just two. By the time Ruth Bader Ginsburg joined the bench three years after Brennan’s departure, the court had grown more conservative, and it only shifted further to the right as Ginsburg’s career progressed. Nonetheless, her opinion in United States v. Virginia is a landmark in its own right, and she had a penchant for writing dissents that spurred Congress to act. And, of course, she was a pop culture icon and a feminist hero. In real March Madness, 12-seeds are notorious for pulling off upsets against 5-seeds. Soon we’ll know if the same holds true in SCOTUS bracketology.

Who should advance?

  • 5 William Brennan (associate justice, 1956-1990) (53%, 4,580 Votes)
  • 12 Ruth Bader Ginsburg (associate justice, 1993-2020) (47%, 4,126 Votes)

Total Voters: 8,706


4 Antonin Scalia vs. 13 Thurgood Marshall

The next two men were historic justices in very different ways. Antonin Scalia championed originalism and textualism as the dominant modes of judicial interpretation, and he was a bold leader of the court’s ascendant conservative wing during his tenure. His numerous iconic opinions include his momentous Second Amendment ruling in District of Columbia v. Heller. He also was the first Italian American justice. Thurgood Marshall, who was descended from enslaved people on both sides of his family, rose to become the first Black justice. A stalwart member of the court’s left flank, he wrote significant opinions questioning the constitutionality of the death penalty and supporting the rights of criminal suspects. Scalia and Marshall were polar opposites not just in their ideological views but in their stated judicial philosophies. Scalia once put it this way: “The judge who always likes the results he reaches is a bad judge.” Marshall had a different approach: “You do what you think is right and let the law catch up.” Both views have their place in Supreme Court history, but in this tournament, only one can prevail.

Who should advance?

  • 4 Antonin Scalia (associate justice, 1986-2016) (51%, 4,938 Votes)
  • 13 Thurgood Marshall (associate justice, 1967-1991) (49%, 4,822 Votes)

Total Voters: 9,760


3 Earl Warren vs. 14 Anthony Kennedy

The Warren court transformed constitutional law and American society in the 1950s and 1960s. Two of its members have already appeared in the tournament (William Brennan and Thurgood Marshall), but Earl Warren was its leader. Among his landmark opinions are Brown v. Board of Education and Loving v. Virginia, two historic watersheds for racial justice. His opponent here, Anthony Kennedy, was transformative in his own right. For much of his tenure, the Supreme Court was truly Kennedy’s court. He was a swing justice who will long be remembered for his sweeping interpretation of the First Amendment and his leading role in expanding LGBTQ rights. Many see his landmark opinion in Obergefell v. Hodges as directly following from Warren’s opinion in Loving.

Who should advance?

  • 3 Earl Warren (chief justice, 1953-1969) (82%, 6,349 Votes)
  • 14 Anthony Kennedy (associate justice, 1988-2018) (18%, 1,412 Votes)

Total Voters: 7,761


6 Hugo Black vs. 11 William Rehnquist

An iconoclastic justice who served for 34 years during the middle of the 20th century, Hugo Black was the father of modern textualism. He advanced his belief in the Constitution’s “plain meaning” by writing the majority opinion in Gideon v. Wainwright, which extended the constitutional right to counsel, and, two years later, dissenting in Griswold v. Connecticut, which found a constitutional right to privacy. (It also must be noted that Black wrote the majority opinion in Korematsu v. United States, the now-discredited ruling that upheld the internment of Japanese Americans during World War II.) William Rehnquist, like Black, favored strict constructionism, and as chief justice, he curtailed many of the liberal rulings of the Warren era and led a jurisprudential shift that was far more skeptical of federal power and more deferential to the rights of states. Interestingly for the purposes of this match-up, he also once called Black one of the court’s most influential justices.

Who should advance?

  • 6 Hugo Black (associate justice, 1937-1971) (54%, 4,046 Votes)
  • 11 William Rehnquist (associate justice, 1972-1986; chief justice, 1986-2005) (46%, 3,404 Votes)

Total Voters: 7,450


7 Louis Brandeis vs. 10 Joseph Story

A pair of intellectual heavyweights meet in this 7-versus-10 match-up. Louis Brandeis, the first Jewish person to serve on the Supreme Court, was well ahead of his time. In the early 20th century, he worked closely with Justice Oliver Wendell Holmes to build a modern conception of the First Amendment, and he single-handedly developed the idea of a right to privacy that would be adopted decades later. (His dissent in Olmstead v. United States, on the danger of the surveillance state, is prescient.) Joseph Story, meanwhile, was a long-serving early justice and John Marshall’s principal collaborator in laying the groundwork of American jurisprudence. (Marshall gets most of the credit, but many scholars consider Story more cerebral and a better writer.) Among his many contributions was his majority opinion in Martin v. Hunter’s Lessee, which, as all first-year law students know, established the Supreme Court’s authority over state courts on matters of federal law.

Who should advance?

  • 7 Louis Brandeis (associate justice, 1916-1939) (68%, 4,833 Votes)
  • 10 Joseph Story (associate justice, 1812-1845) (32%, 2,299 Votes)

Total Voters: 7,132


2 Oliver Wendell Holmes vs. 15 Felix Frankfurter

The final contest of the first round features two of Harvard Law’s most famous graduates – one a mentor to the other. Oliver Wendell Holmes is a towering figure in American law and, some say, the greatest writer ever to sit on the court. He developed the “clear and present danger” test for free speech cases, and he was an ardent pragmatist and common law constitutionalist. (A major stain on his record, however, is his opinion in Buck v. Bell, which upheld a state law permitting compulsory sterilization of people with intellectual disabilities.) Felix Frankfurter followed in Holmes’ footsteps, defying easy ideological categorization and becoming the leading proponent for judicial restraint – a philosophy embodied in several famous dissents in which he fought against broad interpretations of civil liberties and judicial power. 

Who should advance?

  • 2 Oliver Wendell Holmes (associate justice, 1902-1932) (73%, 5,373 Votes)
  • 15 Felix Frankfurter (associate justice, 1939-1962) (27%, 2,008 Votes)

Total Voters: 7,381

Recommended Citation: James Romoser, A March Madness tournament to choose the greatest Supreme Court justice, SCOTUSblog (Mar. 17, 2021, 3:58 PM),