Vanderbilt law professor Suzanna Sherry recently posted an interesting article on “Why We Need More Judicial Activism”, which led to a symposium at The Green Bag, and a critique by co-blogger Orin Kerr. I agree with Sherry’s main point: that we need more judicial review, not less, and that historically federal courts have erred more often and more seriously by upholding laws that should have been invalidated than by striking down laws that should have been in place. At the same time, I am dubious about her particular reasoning.
I. How Should We Evaluate the Costs and Benefits of Activism?
In my view, courts tend to err on the side of upholding too many laws because of the incentives created by the political system in which they operate. Federal judges are appointed by the president and confirmed by the Senate. This diminishes the likelihood that they will want to strike down laws that enjoy strong support from these other political elites, or from the general public that elects them. In addition, federal judges depend on the other branches of government to enforce their decisions, and they know that enforcement will be weak or even nonexistent if they make rulings that offend other political elites or public opinion too much. These constraints are particularly likely to deter courts from striking down federal laws; but they also make it less likely that judges will strike down state laws that enjoy substantial support at the federal level. In addition, I think the historical harm caused by decisions that erroneously upheld laws is vastly greater than that caused by mistaken decisions that cut the other way. Obviously, this conclusion (which I won’t try to defend in detail here), rests on contestable judgments about both constitutional interpretation and the real-world effects of various court decisions.
Sherry’s argument for increased “judicial activism” (which she defines simply as court decisions striking down laws or other official actions) is very different. She contends that courts should err on the side of activism because all of the six “universally condemned” Supreme Court decisions or groups of decisions of the past were cases where the Court erroneously upheld laws rather than erroneously struck them down.
The biggest problem with this approach is that it is a mistake to judge the Supreme Court’s 200 year record just by looking at a few of its very worst decisions – even assuming that these really are the worst decisions. Even if the very worst decisions all fit the category of erroneous upholding of laws, it could be that there are dozens of other, only slightly less bad, decisions cutting the other way. And perhaps their cumulative impact outweighs the six cases Sherry emphasizes.
II. Sherry’s Selection of “Universally Condemned” Cases.
There are also problems with Sherry’s selection of cases to include or exclude. On the one hand, Dred Scott v. Sandford, one of the most infamous rulings in Supreme Court history, is excluded because it was only in effect for a few years before being negated by the Civil War, and thus had little negative impact (though people who blame the Court for the outbreak of the war itself, would surely disagree). Yet at the same time, Sherry includes Minersville School District v. Gobitis, the 1940 case holding that public schools could force students to recite the Pledge of Allegiance, despite the fact it was overruled three years later.
Cases such as Lochner v. New York and, presumably, Hammer v. Dagenhart (1918) (which struck down a federal law banning industrial child labor) are excluded because modern condemnation of these rulings is no longer “universal.” I am pleased with this nod to libertarian revisionist scholarship by authors such as the VC’s own David Bernstein; I endorse many of the revisionists’ arguments myself. But, at the same time, Sherry lists the World War II Japanese internment cases, including Korematsu, despite the fact that there are now prominent Korematsu revisionists who claim that those decisions were correct, most notably Judge Richard Posner and prominent conservative pundit Michelle Malkin. Similarly, Sherry includes Bradwell v. State, the 1873 case upholding a state law banning women from the legal profession, despite the fact that Justice Antonin Scalia and some other conservative jurists believe that the 14th Amendment imposes little or no constraint in gender discrimination, and therefore would probably conclude that Bradwell was correctly decided.
I am no fan of Korematsu revisionism, and I think that Scalia is wrong about the 14th Amendment for reasons outlined by Steve Calabresi and Julia Rickert. But if the existence of prominent revisionists is enough to take Lochner and Hammer off the list of “universally” condemned cases despite the fact that they continue to be reviled by a large majority of scholars and judges, the same goes for Korematsu and Bradwell. In fairness, Lochner revisionism is more developed and probably has a larger number of intellectually respectable adherents than Korematsu revisionism and Bradwell revisionism. But Hammer revisionism is still in its relative infancy, even by comparison with modern defenses of Korematsu.
Sherry argues that the advantage of her methodology is that by focusing on cases that are “universally” condemned, it sidesteps controversy over political ideology and constitutional theory. But it turns out that such controversies are difficult to avoid in debates over judicial review. If we want to figure out whether excessive judicial activism is a greater danger than excessive passivity, we need to know which court decisions qualify as examples of each, and how much harm they caused. Ultimately, we cannot properly evaluate the performance of judicial review without considering these deeper questions.