A popular phrase in the run up to the recent supreme court hearings. But, what exactly is the criteria for a legal mind to be considered brilliant? I’ll pass over the question of what makes a mind legal.
When one says Smythe is a brilliant mathematician, it is expected that one can point to some mathematical Everest that Smythe has scaled. For example, Smythe solved the Kyzckmaski conjecture. Or, Smythe introduced the notion of mother functors which turn out to be very important in the analysis of toposes. In short, Smythe is the author of a significant idea, thought or perspective original to her.
Perhaps, mathematics is not the right comparison. What about history? What sets one Historian above another? An original view of matters, the ability to marshall and synthesize the evidence in support of it, conveyed in language to make the blood sing. Ok, I’m describing Macaulay who would give Herodotus a run for the title of Father of Lies. But even with brilliant historians, there is a body of work that one could point to whose originality in either perspective or subject sets them apart.
If one BINGs the term (note the product placement) brilliant legal mind, a host of entries pointing to Kagan, Posner, Scalia and a placement firm show up. Beginning with Kagan, evidence offered in support of her brilliance is slender. Most of it is the reverent authority variety. She is brilliant because she was top of her class at Princeton, Oxford and Harvard. She is brilliant, well, because I say so and I am acknowledged to be brilliant. Indeed, in the twelve years prior to becoming Dean, she had published only 7 journal articles. I will not dwell upon my prejudice that law review articles are little more than after dinner conversations with footnotes. I am not a lawyer, nor do I play one in the classroom.
What do eminent lawyers have to say about this record? The most positive I know of makes an argument based on the paper with largest number of cites (10 times the average of the others). Interestingly this paper was published after she received tenure at the U of C. This reviewer does not point to a particular idea or thought in that paper deserving of attention, only the large number cites. The most negative offers a review of Kagan’s contributions that reminds one of Clive James’ remarks on Khruschev’s memoirs:
Here is a book so dull that a whirling dervish could read himself to sleep with it. If you were to recite even a single page in the open air, birds would fall out of the sky and dogs drop dead.
Turning to Posner, the case for brilliance seems clearer. The record exhibits enormous industry and erudition. He is credited with being one of the central figures in the introduction of economics as a lens through which to analyze the law.
Scalia is another popular choice for brilliant legal mind. Incisive prose and a sharp tongue. An original idea? By his own admission his role constraints him from having them. His task is to channel the dead. If Scalia, is to be believed about the role of Supreme Court Justice, brilliance is the very last quality one would want of a justice!
Scalia has written about what a legal education imparts (see the book `A matter of interpretation….’). He identifies two skills. The first is the ability
to think about, and devise, the “best” legal rule………..
The second is the technique of distinguishing between cases. Neither of these seem unique to the Law. Which raises another question, what makes a brilliant legal mind different from a brilliant mind full stop?