To briefly recap, Suzanna contends that courts should err on the side of excessive “activism” (defined simply as striking down laws or other official actions) rather than excessive restraint, because all of the handful “universally condemned” Supreme Court decisions she identifies fall into the category of cases where the Court upheld laws that it should have struck down. Unlike Orin, I agree with Suzanna’s conclusion, but have objections to her methodology. In particular, I argued that it is a mistake to evaluate 200 years of judicial review based solely on a few of the Courts’ very worst decisions. I also suggest that Suzanna was inconsistent in applying her criteria for determining which cases are “universally condemned.”
Suzanna has responded to my second criticism, though not my first:
Ilya… 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