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 defenders, because the opposite decision is also legally defensible. Almost every Supreme Court decision is legally defensible. What matters is that today, with hindsight, we’d prefer the legally defensible result that is not morally abhorrent.

That’s why Hammer doesn’t count and Bradwell does. Forcing someone to use child labor is morally abhorrent, but telling the government that it can’t prohibit the use of child labor might instead reflect views about the efficacy of carrots and sticks. Prohibiting women from becoming lawyers might be legally correct on one view of the Fourteenth Amendment, but it is nevertheless morally abhorrent.

I can anticipate two objections to this line of reasoning. One is that some people – maybe including Justice Scalia – believe that most (all?) constitutional questions have only one right answer: theirs. I would refer those people to Judge Learned Hand, who said that “the spirit of liberty is the spirit which is not too sure that it is right.”

The other possible objection is essentially Orin’s: My choice of cases is just a reflection of the elite academic zeitgeist. To that I can only reply as Arthur Leff did in Unspeakable Ethics, Unnatural Law: “Everything is up for grabs. Nevertheless: Napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. All together now: Sez who? God help us.”

Orin makes three additional points. First, he suggests we don’t need another branch of government responsive to public preferences. I agree. The Court should be responsive to our better natures and our future hindsight, not our present whims and passions (see Alexander Bickel). It should prohibit today the practices we will regret tomorrow, even if those practices are popular today.

Second, he points to contractions of rights as contrary to my narrative of progression. But I don’t claim that progress is always steady or that rights might not expand and contract somewhat. Over time, however, the trend, even on the Court, is always toward more rights. And his example of criminal procedure isn’t really contrary: While the Court has reined in some of the Warren Court decisions, it has never held (and, I predict, never will), that warrantless searches are generally acceptable, that suspects can be subtly coerced into confessing, or that defendants who cannot afford lawyers are flat out of luck. We’ll never go back to treating criminal defendants as without rights or at the mercy of prosecutors.

Finally, he argues that I should include any case that is merely very unpopular, rather than limiting myself to those that are universally condemned. Maybe so. But then we are embroiled in debates about just where the line should be drawn and how many outliers are too many. Choosing universally condemned cases was my attempt to avoid controversy. Apparently, it failed.

In the end, when it comes to safeguarding liberty, I trust judges more than I trust legislatures. So did the Founding generation. And I still think the historical evidence bears me out.