Hugo Black and the Hall of Fame

Abstract

Baseball fans endlessly debate the comparative statistics of hall-of famers. Who was the greatest of all time-Babe Ruth or Willie Mays? What about Hank Aaron and Ted Williams (to say nothing of Barry Bonds and Ken Griffey, Jr.)? We law professors playa similar parlor game among ourselves, rating judges and Justices. Who was the greater Chief Justice, John Marshall or Earl Warren? Which twentieth century judge never to sit on the Supreme Court would have made the best Justice? Was Justice Holmes really all that he was cracked up to be? Who was the most underrated Justice? Who was the greatest player on Earl Warren's team-Warren himself, or one of his teammates? I do not wish to press the analogy between the Supreme Court and a baseball team too hard, but might it be worth pondering the magic number nine? The Constitution itself does not specify the size of the Supreme Court, or require that the size stay fixed. Indeed, over the first century of its existence, the Court's size oscillated from five to ten. Is it, then, mere coincidence that the idea of a Court fixed by tradition at nine members took root at the same time that the nine-person game of baseball was taking root as the national pastime? Or that the idea of changing that number in the 1930s proved unthinkable to many traditionalists, in precisely the same era that is now seen as baseball's Golden Age?