An Unhelpful Way to Measure the Consequences of Striking Down Versus Upholding Legislation: A Response to Sherry

Professor Suzanna Sherry recently posted an essay, Why We Need More Judicial Activism, arguing that we should encourage courts to strike down legislation because courts more often err by upholding legislation than by striking down legislation. The Green Bag put out a request for responses to Sherry’s article. I wrote up a response, but then I decided not to submit it. I figured that I probably had nothing novel to say, and this wasn’t really in my area anyway. But The Bag has published the responses to Sherry’s essay in its latest micro-symposium, and no one’s response was similar to mine. So I thought I would give readers a basic summary of Sherry’s argument and then post the criticism I wrote but never submitted.

I. Sherry’s Argument

The question raised by Sherry’s article is whether we should encourage courts to strike down or uphold legislation when exercising judicial review. Sherry’s view is expressly consequentialist. She argues that courts should err more on the side of striking down legislation because in the past courts have most often been “wrong and detrimental” when they upheld legislation rather than when they struck it down. The natural question is, how can you tell if courts have been “wrong and detrimental”? Sherry relies on the judgment of the community of scholars with the following test: She argues that a prior decision is clearly erroneous and detrimental if it is “universally condemned.” If there is debate as to whether a case was wrongly decided, then Sherry doesn’t try to resolve it. But if there is universal agreement that a decision was wrong, then Sherry counts it as wrong. To figure out if the courts tend to err on the side of upholding or striking down legislation, she tabulates the cases that are universally condemned. The result is a list of six sets of cases, described by Professor Sherry as follows:

Bradwell v. State and Minor v. Happersett, which in 1873 and 1874 upheld state laws prohibiting women from, respectively, practicing law or voting in state elections. Minor was overruled by the adoption of the Nineteenth Amendment in 1920; Bradwell remained good law until 1971, when it was discredited (but not officially overruled) in Reed v. Reed.

Plessy v. Ferguson, which upheld racial segregation in 1896 and remained good law until it was discredited (but, again, not overruled) by Brown v. Board of Education in 1954.

Abrams v. United States and three other related 1919 cases, which upheld the censorship of political ideas and remained good law until they were overruled by Brandenburg v. Ohio in 1968.

Buck v. Bell, which upheld involuntary sterilization in 1927 on Justice Holmes’ famous reasoning that “three generations of imbeciles are enough,” and remained good law until it was discredited (but, again, not overruled) in 1942 by Skinner v. Oklahoma.

Minersville School District v. Gobitis, which in 1940 allowed a school district to force children to salute the flag even though it violated the children’s religious principles. Gobitis was explicitly overruled only three years later, in West Virginia State Board of Education v. Barnette, in which Justice Jackson famously declared: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Hirabayashi v. United States and Korematsu v. United States, which in 1943 and 1944 upheld, respectively, the exclusion of Japanese-Americans from the West Coast and their forced relocation to concentration camps during World War II. Neither case has ever been overruled although Hirabayashi’s and Korematsu’s convictions have been expunged and the United States has apologized and paid reparations to those affected by the exclusion and relocation orders.

Looking over the list, Sherry notes that all of these cases involve upholding legislation. Because the clear errors involve upholding legislation that should have been struck down, she concludes that courts should do less of that: “[H]istory teaches us that the false negatives – the cases in which a deferential Court fails to invalidate governmental acts – are of much more enduring, and detrimental, significance. Only a Court inclined toward activism will vigilantly avoid such cases, and hence we need more judicial activism.”

II. My Criticism

I found Professor Sherry’s argument unpersuasive for a number of reasons. Even accepting its consequentialist premise, its biggest problem is that Sherry uses contemporary attitudes about past decisions as a proxy for correctness. In Sherry’s view, the more broadly a case is condemned today, the more clear is its error. Under that assumption, a list of universally condemned cases is a list of the most obviously wrong decisions. But we need to look more critically at the key question: What makes a decision “universally condemned”?

In my experience, decisions are uniformly reviled only when they come into sharp conflict with modern values. Cases on ERISA are never universally condemned. People just don’t care that much about them. To be universally condemned, a case has to be so out of touch with contemporary social attitudes that its viewpoint is no longer welcome in polite society.  If a decision reflects values that at least some group in the legal academy shares, then someone will defend it and it can no longer be on the “universally condemned” list by definition. Sherry’s list bears this out, I think. Her list of universally condemned cases is a list of cases in sharp conflict with modern values. In each case, the early decision endorsed values modern society universally rejects: sexism, racism, censorship, eugenics, disrespect for freedom of conscience, and internment.

If I’m right about what makes a decision universally condemned, then Sherry’s results do not accurately measure what they purport to measure.

To see why, think of the universe of cases that might qualify for inclusion on the list. Right of the bat, we can rule out any recent cases. A majority of the Supreme Court is extremely unlikely to adopt a view not welcome in polite society during its own era. As a result, there can be no recent cases that are universally condemned. The only remaining source of “universally condemned” cases will be old decisions involving old legislation from a time when legal elites like legislators and judges lacked the modern values we today consider universal. There are two categories of old cases that could be universally condemned today: (1) Old cases reviewing legislation in sharp conflict with universal modern values that courts nonetheless upheld, and (2) Old cases reviewing legislation that embraced universal modern values that courts nonetheless struck down.

We would expect cases fitting category (1) to be vastly more common than cases fitting category (2) for reasons that have nothing to do with the costs or benefits of striking down legislation. Just consider the relevant pool of potential cases. It was much more common for legislatures from long ago to embrace long ago values than modern values, and it was much more common for judges from long ago to uphold laws than strike them down. So we would expect a list of “universally condemned” cases to be mostly or entirely a list of old cases upholding old legislation. In short, Sherry’s methodology ensures that we will arrive at a list of cases in which the laws were upheld rather than struck down. That Sherry’s list ends up consisting only of such cases tells us little or nothing about whether courts be more or less inclined to strike down legislation.

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