This is a reply to Professor Sherry about her argument that courts should strike down more legislation. In her reply to my critique of that argument, she explains that that her mini empirical study was merely intended as confirmation that striking down more laws is good because public preference favors more rights over time. As I understand her position, she sees an inevitable trend towards public preference for greater rights. Sherry wants the Supreme Court to predict those future policy preferences and constitutionalize those preferences before legislatures can do it. She writes: “I don’t know what contemporary ideas may, in the future, become unwelcome in polite society, but whatever they are I hope the Court rejects them sooner rather than later. When it comes to rights, law should lead, not follow.”
I don’t find this persuasive for a number of reasons. In the interests of time, I’ll limit myself to disagreements internal to Sherry’s argument.
First, if the role of the Supreme Court is to predict policy preferences of the future, it’s not clear to me why we need a Supreme Court. We already have two branches of government that are supposed to be responsive to public preferences, the legislature and the executive. If everyone believes that conduct X is bad — so much that supporting X is not welcome in polite society — then legislatures will prohibit X if the Supreme Court doesn’t. If those are the cases that matter, why have judicial review at all?
Second, I disagree that there is an inevitable path towards public preference for greater rights. It seems to me that rights come in many different forms. Each aspect of each right has its own popularity trail, to the extent the public has any particular view of it. Given the incredible diversity of rights, changing public preferences, and the path dependence of legal development, I don’t know how it’s possible to generalize that the public always prefers more rights over time.
It’s true that there are cases that match Sherry’s narrative. But I don’t think the handful of cases she focuses on goes beyond anecdotal evidence, and there are lots of contrary examples. For example, the Warren Court’s criminal procedure revolution expanded constitutional protections, but those expansions led to a backlash. That backlash helped elect Nixon, which led to appointments that cut back on several of the Warren Court decisions. To paint with a broad brush, the rights expanded and contracted somewhat, rather than expanded and expanded. And that seems to pretty much match public preferences today.
Third, if public preference is really the guide, I don’t know why we should limit ourselves to the handful of cases that fit Sherry’s announced criteria for being “universally condemned.” Of our test for what is “right” or “wrong” is really a question of what is popular or unpopular with the public, then “universal condemnation” doesn’t make sense as a test. Cases that are merely really unpopular should be sufficient, even if there are some outliers in public opinion.
Fourth, Sherry’s reply leaves me unclear on just who the “everybody” is that we look to to know when universal condemnation has occurred. Most members of the public don’t have a view of Supreme Court decisions. And when Sherry speaks about what decisions make people “proud” versus “ashamed,” that sounds less like a test of public opinion and more like a reflection of the zeitgeist inside the faculty lounge.
Now, perhaps that’s really the test. Maybe the point of Sherry’s argument is that law professors really like activist decisions, and therefore the courts should do more of that to match academic preferences. But if that’s the argument, it requires an explanation of why the personal preferences of elite academics — a group generally cut from a very narrow socio-economic and political segment of the public — should have such tremendous importance.