Rejoinder to Suzanna Sherry on the Case for “Judicial Activism”

Vanderbilt law professor Suzanna Sherry has written a thoughtful response to my and Orin Kerr’s critiques of her article “Why We Need More Judicial Activism.”

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 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.

I don’t think that this is a sufficient answer to my point. If the criteria for being universally condemned is that virtually everyone today believes the decision was wrong, then cases such as Korematsu and Bradwell don’t qualify. Prominent jurists and political commentators such as Judge Richard Posner and Michelle Malkin have defended Korematsu as correctly decided. Justice Scalia seems to endorse the reasoning of Bradwell. He might well vote to strike down a law banning women from becoming lawyers today. But, if so, that is because numerous later precedents (which Scalia believes were wrongly decided) have raised the level of scrutiny accorded to gender classifications far above minimal rational basis, and it is too late to try to overrule them. His interpretation of the original meaning of the Fourteenth Amendment strongly suggests that he is committed to the idea that Bradwell was rightly decided. Obviously, one can believe that Bradwell was correct as a matter of constitutional law, while also believing that the law it upheld was deeply unjust and “shameful,” as Suzanna puts it. But a legally correct decision upholding an abhorrent law has a different moral status from one that does so in violation of the Constitution. As discussed in my original post, I am no fan of either Korematsu or Bradwell myself. But, given their prominent defenders, it’s hard to argue that the modern rejection of these rulings is truly universal in the strong sense that “almost everyone” agrees with it.

If we define “universally condemned” less restrictively to include cases that are condemned by a large majority of modern jurists and legal scholars even if there is still some noteworthy dissent, then Korematsu and Bradwell would qualify. But, as I discussed in my earlier critique, the same would be true of cases like Lochner and Hammer v. Dagenhart, which struck down laws rather than upheld them. Although I have some sympathy for Hammer revisionism myself, at this point it enjoys little more support than Korematsu revisionism. If we adopt a looser definition of “universally,” we end up with a list of “universally condemned” decisions which is longer than Suzanna’s and includes a number of cases striking down laws rather than upholding them.