Suzanna Sherry on “Universally Condemned” Supreme Court Decisions

In her latest rejoinder in our debate about “judicial activism,” Prof. Suzanna Sherry helpfully clarifies her view on what qualifies as a “universally condemned” Supreme Court decision. This is important, because Sherry claims that we have more reason to fear excessive judicial passivity than excessive “activism” (which she defines as striking down laws or official actions) because all of the “universally condemned” decisions of the past have been ones that upheld laws that should have been struck down. For my previous post and links to earlier posts by Sherry, myself and Orin Kerr, see here).

Unfortunately, Suzanna to some degree vacillates between two different definitions of “universally condemned.” Initially, she describes these rulings as “cases that everybody today would decide the other way, whether or not they were writing on a blank precedential slate.” By that definition, as I argued in previous posts, such cases on her list as Bradwell v. State (1873) and Korematsu would not qualify, because leading jurists such as Richard Posner (who argues that Korematsu was right), and Antonin Scalia (whose logic suggests Bradwell should go the other way today only because intervening precedent he thinks is wrong) are willing to defend them. Later in the post, Suzanna suggests that “A universally condemned case… is one that is, in Ilya’s terms, universally viewed as morally abhorrent. It doesn’t matter that it has its legal defenders, because the opposite decision is also legally defensible.”

Notice that there is an important difference between Suzanna’s first definition and her second. A decision that some view as legally correct (and therefore would decide the same way today), might be universally denounced as “morally abhorrent” in the sense that virtually everyone today agrees that it upheld a deeply unjust law or policy. Bradwell (which upheld a state law excluding women from the legal profession) qualifies under the second definition (even those modern jurists who think it was legally correct believe that this kind of sex discrimination is evil), but not under the first. Korematsu does not qualify even under the second definition, because a small but vocal group of conservatives led by columnist Michelle Malkin believe that Franklin D. Roosevelt had good reason for detaining the Japanese-Americans in concentration camps during World War II. Others believe that such race-based internment in wartime might be justified in some cases (if it was the only way to deal with a sufficiently grave threat), even though they decry FDR’s actions as excessive in the particular circumstances of 1942.

To sum up, there is some tension between Suzanna’s two formulations of what she means by “universally condemned.” And the difference matters because the list of cases that is “universally condemned” under the first will be different from the list that is “universally condemned” under the second.

As I have said from the start, I agree with Suzanna’s bottom-line view that the historical record suggests that an overly passive judiciary is a greater danger than an overly active one. I also agree that all the cases on her list are important examples of the dangers of excessive judicial passivity. But we differ on the methodology of how we should evaluate the Supreme Court’s record.