Author Archive | Prof. Suzanna Sherry (Vanderbilt), guest-blogging

Sherry (again) on Somin and Kerr

I don’t know how Ilya and Orin and other bloggers do it. Like me, they have day jobs, but they seem to find time to write multiple careful and thoughtful posts! The press of other work means that this will probably be my last post, so I’ll try to be concise and complete. I thank the Volokh Conspiracy for the opportunity to have such an interesting exchange.

Ilya’s comments are immensely helpful in forcing me to articulate just what I mean by universally condemned cases. They are neither cases that cannot possibly be justified as legally correct (as Ilya characterizes my definition) nor cases that academics dislike (as Orin does). They are cases that everybody today would decide the other way, whether or not they were writing on a blank precedential slate.

I don’t believe that many constitutional decisions, especially at the Supreme Court level, can be divided into two distinct categories of “legally correct” and “legally incorrect.” Almost all constitutional cases could plausibly come out either way on the law. So it is certainly possible for a case like Korematsu to be both “legally correct” and “morally abhorrent,” but a case striking down the relocation and internment orders would also be legally correct (and not morally abhorrent).

If you asked people today – including the members of the public that Orin thinks are ignorant of Supreme Court decisions – whether the government should be allowed to put loyal American citizens in concentration camps because of their ancestry, I can’t imagine that anyone would find it acceptable. Maybe that’s just me projecting my elite academic preferences onto the general public, but I certainly hope not.

A universally condemned case, then, is one that is, in Ilya’s terms, universally viewed as morally abhorrent. It doesn’t matter that it has its legal [...]

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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 [...]

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