A Response to Kerr and Somin on Sherry

Orin Kerr and Ilya Somin have posted thoughtful responses to my essay, Why We Need More Judicial Activism, on which the Green Bag recently published a micro-symposium. Orin’s and Ilya’s posts deserve what I hope will be an equally thoughtful reply, and I thank Eugene Volokh for allowing me to post this reply as a guest-blogger.

In my essay, I suggest that judicial activism is consistent with both general constitutional theory and the history – or original meaning – of our particular Constitution. Others have made similar arguments about judicial review, and I simply extend them to activist judicial review. But I add what I think is an original argument: If we look at what the Supreme Court has actually done, we are more likely to regret the cases in which the Court upheld governmental actions than the cases in which the Court invalidated governmental actions.

In other words, with hindsight we are more likely to regret too much deference than too much activism. If we can’t expect the Court to get it right every time, we are therefore better off with a Court that errs on the side of being activist.

The tricky part is identifying the cases that we think are mistaken. Almost every case the Supreme Court decides has both its opponents and its defenders. I wanted to avoid taking sides in ongoing debates, or specifying the criteria that make a case wrong, because doing either would simply replicate the politicized debates over individual cases.

One alternative to specifying cases or criteria is to focus on the cases that just about everyone thinks are right and/or the cases that just about everyone thinks are wrong. In the absence of very many (or any) cases that everybody thinks are right, I focus instead on cases that everybody thinks are wrong. I came up with eleven cases, and all eleven are cases in which the Court acted deferentially and upheld the challenged governmental action.

Orin’s objection is essentially that I stacked the deck. Most cases that are universally condemned today are old cases, most old cases are deferential rather than activist, and therefore most cases on my list are likely to be deferential.

But I think that’s part of the point. The viewpoints that Orin evocatively describes as “not welcome in polite society” tend to develop in only one direction: Things that were once routine and mundane become anathemas. Racism, sexism, eugenics, and so on all fit that bill.

But rarely do we take a right that was once highly regarded, to the point of the Court striking down limitations on it, and decide we no longer care about it. We might vacillate on the breadth of property or contract rights or on exactly what the right to privacy or the right to bear arms means, but we don’t go back on them altogether once they’ve been established. The right to own slaves is the only possible counter-example to this expansionary trend, and it’s hard to argue that our condemnation of slavery reflects a decrease in overall liberty even if it does limit people’s right to own slaves.

Even amendments to the Constitution follow the same pattern: Except for the Eighteenth Amendment (which was eventually repealed), every constitutional amendment that had any effect on individual rights expanded them.

Given that trend, we are always more likely to regret past deferential decisions than past activist ones. The cases I chose merely offer confirmation. I don’t know what contemporary ideas may, in the future, become unwelcome in polite society, but whatever they are I hope the Court rejects them sooner rather than later. When it comes to rights, law should lead, not follow.

Ilya has a different objection to my argument: He doesn’t think I’ve picked the right cases. As a general response, I would repeat my response to Orin, and suggest that the trend towards rights-expansion supports my argument whether or not we quarrel over particular cases.

But I probably should be more careful about my definitions. When I talk about universally condemned cases, I mean cases that almost everyone wishes had come out the other way or would want the Court to decide otherwise today.

So I don’t much care whether Korematsu or Bradwell applied precedent correctly or reached a result that seemed dictated by the (then-known) “facts.” We are ashamed of the government’s actions in those cases, and we would be prouder if we could point to some government institution that stood up for what’s right.

As for Justice Scalia, I find it hard to believe that even he would uphold a law banning women from becoming lawyers. (At least I hope not.) That the Fourteenth Amendment does not directly place restraints on gender discrimination does not mean that it allows the government to act completely irrationally.

In the end, one complaint seems to underlie the objections of many of the commentators on my essay, including Ilya, several of the Green Bag contributors, and possibly Orin. They think I ought to have a theory in support of increased activism. As anyone who has read my work knows, I’m not much for theory. If someone can come up with a theory of judicial activism that is both powerful (in that it works) and persuasive (in that it commands consensus), I’d be happy to support it. I have my doubts.

In the meantime, I view some of these complaints as the legal version of the caricature of the economist’s question: “I know it works in practice, but does it work in theory?” Activism is what works in practice.