The Court’s top 5 opinions

Lawyers George E.C. Hayes, Thurgood Marshall, and James M. Nabrit await word on Brown v. Board of Education on May 17, 1954.
Lawyers George E.C. Hayes, Thurgood Marshall, and James M. Nabrit await word on Brown v. Board of Education on May 17, 1954. AP

This month, as the Supreme Court finalizes some unusually momentous decisions, it’s a good time to ask: Which of the justices’ opinions have been the greatest of all time?

To qualify as great, an opinion must be foundational, in the sense that it helps orient large areas of the law. It also has to have extraordinary analytic power or sheer eloquence. Here’s my short list, in ascending order:

5. Oliver Wendell Holmes, dissenting in Abrams v. New York (1919).

Writing in the midst of World War I, Holmes offered, for the first time in the court’s history, a powerful and ringing defense of free speech.

He emphasized the need to protect the marketplace of ideas:

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.”

That, said Holmes, “is the theory of our Constitution” – though in 1919, he was still fairly isolated in that belief.

4. Earl Warren, Brown v. Board of Education (1954).

Warren wrote for a unanimous Court, striking down school segregation with an opinion that stands out not for its brilliance but for its simplicity and moral clarity. One sentence changed America: “We conclude that, in the field of public education, the doctrine of ‘separate but equal' has no place.”

He also sketched an idea that has inspired many other attacks against discrimination: To separate school children “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community.”

3. Oliver Wendell Holmes, dissenting in Lochner v. New York (1905).

In the early 20th century, the court struck down a great deal of economic legislation, including laws setting maximum hours for workers. In Lochner, Holmes offered history’s definitive plea for judicial restraint.

In his view, “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Holmes contended that a constitution “is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

It’s a testament to the enduring power of his words that they have been invoked by highly diverse critics of judicial activism, from the pro-life movement to defenders of Obamacare to opponents of same-sex marriage.

2. Louis Brandeis, dissenting in Whitney v. California (1927).

On free speech, Holmes and Brandeis usually agreed. But eight years after Holmes’s Abrams dissent, Brandeis outdid his colleague, offering a more uplifting, even romantic account of constitutional liberty.

In the most soaring sentence ever written by a justice, Brandeis spoke for those who won America’s independence:

“They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”

1. Robert Jackson, writing for the court in West Virginia State Board v. Barnette (1942).

Can states compel students to salute the American flag? The Barnette case was decided in the midst of World War II, when the court might have been expected to be reluctant to strike down any effort to promote patriotism. But Jackson had his eye on what the nation was fighting for, and responded, “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

He added, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Over the past half-century, that fixed star has helped orient many liberty-protecting decisions. If we had to preserve just one Supreme Court opinion to show some other civilization what American constitutional law is all about, I’d pick Jackson’s prose poem in the Barnette case.

Sunstein, a Bloomberg View columnist, is director of the Harvard Law School’s program on behavioral economics and public policy.