In her latest rejoinder in our debate about “judicial activism,” Prof. Suzanna Sherry helpfully clarifies her view on what qualifies as a “universally condemned” Supreme Court decision. This is important, because Sherry claims that we have more reason to fear excessive judicial passivity than excessive “activism” (which she defines as striking down laws or official actions) because all of the “universally condemned” decisions of the past have been ones that upheld laws that should have been struck down. For my previous post and links to earlier posts by Sherry, myself and Orin Kerr, see here).
Unfortunately, Suzanna to some degree vacillates between two different definitions of “universally condemned.” Initially, she describes these rulings as “cases that everybody today would decide the other way, whether or not they were writing on a blank precedential slate.” By that definition, as I argued in previous posts, such cases on her list as Bradwell v. State (1873) and Korematsu would not qualify, because leading jurists such as Richard Posner (who argues that Korematsu was right), and Antonin Scalia (whose logic suggests Bradwell should go the other way today only because intervening precedent he thinks is wrong) are willing to defend them. Later in the post, Suzanna suggests that “A universally condemned case… 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.”
Notice that there is an important difference between Suzanna’s first definition and her second. A decision that some view as legally correct (and therefore would decide the same way today), might be universally denounced as “morally abhorrent” in the sense that virtually everyone today agrees that it upheld a deeply unjust law or policy. Bradwell (which upheld a state law excluding women [...]