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 [...]