If people would be outraged by their rulings, should judges care?

Stanford Law Review

Volumn 60, Issue 1, 2007, Pages 155-212

  Sunstein, Cass R ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 34548634032     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (232)

1. The Court avoided this issue in Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
2. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-23 (1962).
3. For an early treatment, see Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957) (arguing that the Court's decisions generally follow the public opinion of the majority). For a recent and broadly compatible discussion,
4. see MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004). For instructive analysis of the general problem,
5. see Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577 (1993); Barry Friedman, Mediated Popular Constitutionalism, 101 MICH. L. REV. 2596 (2003). For a valuable collection,
6. see PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY (Nathaniel Persily et al. eds., forthcoming 2008).
7. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
8. See Dahl, supra note 3.
9. Compare BICKEL, supra note 2, at 111-98 (supporting the use of justiciability doctrines to assist the Court in exercising the "passive virtues"),
10. with Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964) (book review) (criticizing the use of justiciability doctrines to avoid principled decision making).
11. 350 U.S. 891 (1955).
12. See BICKEL, supra note 2, at 174.
13. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).
14. See BICKEL, supra note 2.
15. The most sustained treatment is given in BICKEL, id., with the emphasis on the "passive virtues" as a response, in part, to the problem of public outrage. As we shall see, however, Bickel did not provide firm underpinnings for the Court's consideration of public disapproval of its decisions, and he was hence left vulnerable to the charge of opportunism.
16. See Gunther, supra note 6 (criticizing the use of "passive virtues" as unprincipled).
17. There is an obvious relationship between this topic and the general one of "popular constitutionalism," which sees "We the People" as a kind of tribunal of last resort. See KRAMER, supra note 4. I offer a few remarks on this relationship below. Some strands of popular constitutionalism, of course, have a strong normative feature,
18. see id. at 248 (arguing that the Supreme Court is "our servant and not our master"), but the focus is not on outrage and its effects.
19. This view can be found, in one or another form, in RONALD DWORKIN, JUSTICE IN ROBES (2006);
20. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME (2004);
21. and Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1180 (1989). We might take this view as standard while acknowledging that many people believe that doctrines of justiciability are properly used to limit the Court's intervention in deference to public reaction.
22. See BICKEL, supra note 2. To the extent that this belief is widely held, as it seems to be, the argument here might be seen as an effort to explain how it is best defended.
23. I use this phrase as a placeholder for real disaster. I explore below some of the complexities in deciding what sorts of bad consequences should be considered in constitutional adjudication.
24. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 1 HARV. L. REV. 129 (1893).
25. See KRAMER, supra note 4;
26. JEREMY WALDRON, LAW AND DISAGREEMENT (2004).
27. See, e.g., ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION (2006).
28. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
29. For a popular presentation, see JAMES SUROWIECKI, THE WISDOM OF CROWDS (2004); for a more academic treatment,
30. see SCOTT E. PAGE, THE DIFFERENCE: HOW THE POWER OF DIVERSITY CREATES BETTER GROUPS, FIRMS, SCHOOLS, AND SOCIETIES (2007).
31. See infra Part IV.C Of course it is also true that, in many cases, much of the public will be unaware of the Court's decisions, or largely indifferent to them even if aware. The focus here is on those unusual cases in which the public is both aware and intensely interested.
32. These statements raise obvious complexities; I return to them below. To understand Bentham's dilemma for purposes of the inquiry I am exploring here, it is not necessary to know exactly why Bentham has decided in favor of propositions 1A-1F.
33. See supra notes 2-11.
34. See Scalia, supra note 13, at 1180.
35. 16 U.S.C. §§ 1531-1544 (2000 & Supp. 2004).
36. Cf. TVA v. Hill, 437 U.S. 153 (1978) (enjoining such a project under the Endangered Species Act).
37. 42 U.S.C. §§ 2000d to 2000d-7 (2000).
38. Cf. United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979) (upholding affirmative action plan).
39. See infra Part III.
40. For an overview, see Larry Alexander, Deontology at the Threshold, 37 SAN DIEGO L. REV. 893, 898-901 (2000).
41. Korematsu v. United States, 323 U.S. 214, 248 (1944) (Jackson, J., dissenting).
42. I note below some complexities in the question whether this consequence is relevant, and whether this self-defeating sense is the right one.
43. For a good discussion, see Christine M. Korsgaard, The Right to Lie: Kant on Dealing with Evil, 15 PHIL. & PUB. AFF. 325 (1986).
44. See Cass R. Sunstein, Moral Heuristics, 28 BEHAV. & BRAIN SCI. 531 (2005).
45. See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005) (invoking consequences to assess theory of interpretation);
46. RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY (2003) (same).
47. See BREYER, supra note 34;
48. Richard A. Posner, The Supreme Court, 2004 Term-Foreword: A Political Court, 119 HARV. L. REV. 31, 90-102 (2005).
49. See Saikrishna Prakash, Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors Are Wrong for America, 106 COLUM. L. REV. 2207 (2006) (book review) (arguing that a form of originalism is required by the very notion of interpretation).
50. See Gunther, supra note 6, for an account of why this view might be coherent.
51. See BREYER, supra note 34.
52. See VERMEULE, supra note 17, at 21-24.
53. See Samuel lssacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 THEORETICAL INQUIRIES IN L. 1 (2004).
54. See JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY (2006).
55. See BICKEL, supra note 2, at 111-98.
56. But see Gunther, supra note 6 (objecting that the Court should be principled and that use of the passive virtues is too opportunistic).
57. See BICKEL, supra note 2, at 25.
58. Id. at 24-26.
59. Id. at 64.
60. Id.
61. See CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999).
62. This point itself raises serious puzzles. If Bentham is a consequentialist, is it so clear that he will refuse to lie about the grounds for his judgment, even if lying would produce good consequences? One answer is that lies ultimately produce bad consequences; the publicity condition, requiring officials to act in ways that can be defended honestly and in public, might be understood as a way of ensuring against those bad consequences.
63. See David Luban, The Publicity Principle, in THE THEORY OF INSTITUTIONAL DESIGN 154 (Robert E. Goodin ed., 1996). Another answer is that notwithstanding his name, Bentham may believe that lying is an intrinsic wrong, because it does not treat his fellow citizens with respect.
64. See David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 353-60 (1991). Note that Bentham is a consequentialist, not a utilitarian; he may therefore believe that treating people disrespectfully is an independent wrong, one that counts in the consequentialist calculus.
65. See Amartya Sen, Fertility and Coercion, 63 U. CHI. L. REV. 1035, 1038-39 (1996) (noting the possibility of considering rights violations as part of the assessment of consequences).
66. See Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (emphasizing the need to attend to constitutional judgments of other branches).
67. See Van Orden v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring) (fearing that deeming a Ten Commandments display a violation of the Establishment Clause would "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments" and "create the very kind of. . . divisiveness that the Establishment Clause seeks to avoid");
68. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004) (referring to "a highly public debate over ... the propriety of a widespread national ritual, and the meaning of our Constitution").
69. A straightforwardly consequentialist argument in favor of a distinctive approach to interpretation can be found in BREYER, supra note 34.
70. I borrow here from ALBERT O. HIRSCHMAN, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY (1991).
71. 349 U.S. 294, 301 (1955).
72. For illuminating discussions of the controversy over the "all deliberate speed" formulation, see KLARMAN, supra note 3;
73. RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR RACIAL EQUALITY (2d ed. 2004);
74. and J. HARVIE WILKINSON IH, FROM BROWN TO BAKKE: THE SUPREME COURT AND SCHOOL INTEGRATION: 1954 TO 1978 (1979).
75. Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585 (1983), offers a valuable discussion of the role of public resistance, and outrage, in the selection of remedies.
76. See Howard Gruenspecht, Zero Emission Vehicles: A Dirty Little Secret, POLICY MATTERS (AEI-Brookings Joint Center, Washington, D.C.), Oct. 2000, available at http://www.aei.brookings.org/ policy/page.php?id=51 (contending that the requirement of low-polluting new vehicles will actually increase pollution in the short run, by extending the life of older, high-polluting vehicles).
77. See Nairn v. Nairn, 350 U.S. 891 (1955) (declining to decide whether bans on racial intermarriage are unconstitutional). There are of course difficult issues about how to characterize the underlying goals, such that a particular decision would turn out to be perverse.
78. This is the fear expressed in Justice Jackson's dissent in Korematsu v. United States, 323 U.S. 214, 248 (1944) (Jackson, J., dissenting), and probably in the Court's opinion as well,
79. see id. at 220 (majority opinion) ("[W]hen under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.").
80. See RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY (2006) (arguing for a pragmatic approach to the Constitution in the context of national security, in a way that allows the executive wide room to maneuver).
81. See, e.g., BICKEL, supra note 2.
82. See DWORKIN, supra note 13.
83. 410 U.S. 113 (1973).
84. See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991).
85. Admittedly, this belief will be based partly on the consequences of failing or not failing to allow same-sex marriages.
86. See ROSENBERG, supra note 62. Recall that Bentham is a consequentialist; his deepest convictions are a product of his judgments about the effects of various outcomes.
87. See MARY ANN GLENDON, ABORTION AND DFVORCE IN WESTERN LAW (1987) (arguing Roe v. Wade produced polarization that reduced possibility of compromise solutions).
88. Compare the debate over Bush v. Gore, 531 U.S. 98 (2000). No one contended that a member of the Court could legitimately take account of whether George W. Bush or Al Gore would be a better president. It is interesting that pragmatic judges, insistent on taking account of consequences, implicitly ruled that consideration entirely out of bounds.
89. See RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS (2001). The puzzle for the committed consequentialist is: why?
90. An illustration is "confirmation bias," by which people's judgments about what is true are influenced by their desire to have their own beliefs confirmed. See, e.g., Barbara O'Brien & Phoebe C. Ellsworth, Confirmation Bias in Criminal Investigations (Sept. 19, 2006) (unpublished manuscript), available at http://ssrn.com/abstract=913357.
91. See Gunther, supra note 6, at 5.
92. See Scalia, supra note 13 (defending firm rules on the ground that they stiffen the judicial spine when the stakes are high).
93. See ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES (1941);
94. STONE, supra note 13.
95. Cf. Scalia, supra note 13, at 1180 (emphasizing the value of rules in allowing judges to stand firm when popular pressure is intense).
96. As I have noted, a judge needs to make supplemental judgments to decide what counts as such; recall here Justice Jackson's suggestion that his conclusion that courts ought not to enforce the military order to detain Japanese-Americans on the West Coast need not be taken to "suggest that the courts should have attempted to interfere with the Army in carrying out its task." Korematsu v. United States, 323 U.S. 214, 248 (1944) (Jackson, J., dissenting).
97. See Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 6 (1975) (noting that once a lawyer-client relationship with a criminal defendant is established it is "appropriate and obligatory" for the attorney to put on a vigorous defense even if the attorney believes the client to be guilty).
98. Cf. Carol S. Steiker, No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, and the Death Penalty, 58 STAN. L. REV. 751 (2005) (objecting on deontological grounds to convictions of innocent people, even if consequentialism calls for such convictions).
99. See Sen, supra note 48, at 1038-39 (arguing for a form of consequentialism that sees rights violations as relevant consequences).
100. Compare Bernard Williams's well-known suggestion that in certain domains those who make consequentialist assessments have "one thought too many." If someone makes such an assessment before deciding to save his wife rather than a stranger from a burning building, we might well conclude that he is having an excessive thought. See Bernard Williams, Persons, Character, and Morality, in MORAL LUCK: PHILOSOPHICAL PAPERS, 1973-1980, at 18 (1981). So too, it might be thought, for those in certain institutional roles. If a doctor asks whether a patient is benefiting society before undertaking a diagnosis, or if a judge thinks about the consequences for the unemployment rate of a certain ruling, excessive thinking is taking place. It is worth considering the possibility that Williams's claim is correct, but only for reasons of system design: the consequences are best if spouses do not think that way, and so too for doctors and judges. For a critique of Williams's position,
101. see Elinor Mason, Do Consequentialists Have One Thought Too Many?, 2 ETHICAL THEORY & MORAL PRAC. 243 (1999).
102. Cf BREYER, supra note 34 (defending validation of affirmative action on the ground that it would promote inclusion and active democracy). Justice Breyer's point is not that the reaction to the Court's decision would itself be a good consequence, or produce good consequences, but he certainly offers a consequentialist defense of the Court's validation of affirmative action.
103. Compare the public reaction to Kelo v. City of New London, 545 U.S. 469 (2005). President Bush, for example, reacted to the decision with an executive order instructing the federal government to use eminent domain "for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken." Exec. Order No. 13,406, 71 Fed. Reg. 36,973 (June 23, 2006), available at http://www.whitehouse.gov/news/ releases/2006/06/20060623-10.html. For a valuable treatment of the controversy,
104. see Janice Nadler et al., Government Takings of Private Property: Kelo and the Perfect Storm (Northwestern Sch. of Law Pub. Law & Legal Theory Series, Working Paper No. 07-05, 2007), available at http://ssrn.com/abstracts=962170.
105. See Lawrence v. Texas, 539 U.S. 558, 578 (2003).
106. See STEPHEN G. BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY 335-36 (6th ed. 2006).
107. See VALUING ENVIRONMENTAL PREFERENCES: THEORY AND PRACTICE OF THE CONTINGENT VALUATION METHOD IN THE US, EU, AND DEVELOPING COUNTRIES (Ian J. Bateman & Kenneth G. Willis eds., 1999).
108. See Matthew D. Adler, Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety, 79 CHI.-KENT L. REV. 977, 987-89 (2004) (describing how a particular negative feeling-fear-is a welfare setback and should be counted as a cost in cost-benefit analyses).
109. For a discussion with relevant citations, see LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002).
110. See STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY (1995).
111. See BICKEL, supra note 2, at 174-75.
112. See Nairn v. Nairn, 350 U.S. 891 (1955).
113. See Roe v. Wade, 410 U.S. 113 (1973);
114. see also Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985).
115. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) (calling for such an expansion).
116. See supra text accompanying note 43.
117. For a sketch, see CASS R. SUNSTEIN, INFOTOPIA: HOW MANY MINDS PRODUCE KNOWLEDGE 25-28 (2006).
118. See SUROWEECKI, supra note 19.
119. An especially helpful discussion is found in PAGE, supra note 19.
120. See Christian List & Robert E. Goodin, Epistemic Democracy: Generalizing the Condorcet Jury Theorem, 9 J. POL. PHIL. 277, 283-88, 295-97 (2001). A good discussion can also be found in PAGE, supra note 19.
121. A useful, brisk discussion can be found in BERNARD WILLIAMS, MORALITY: AN INTRODUCTION TO ETHICS (1972).
122. See, e.g., DWORKIN, supra note 13.
123. See Lawrence v. Texas, 539 U.S. 558, 572, 576 (2003).
124. See RONALD DWORKIN, LAW'S EMPIRE (1986).
125. See SUNSTEIN, supra note 90, at 29-30.
126. See, e.g., Norbert Schwarz & Leigh Ann Vaughn, The Availability Heuristic Revisited, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 103 (Thomas Gilovich et al. eds., 2002).
127. CONDORCET: SELECTED WRITINGS 62 (Keith Michael Baker ed., 1976).
128. See BICKEL, supra note 2, at 23-28.
129. See Eric A. Posner & Cass R. Sunstein, The Law of Other States, 59 STAN. L. REV. 131 (2006) (exploring the view that courts should take into account decisions of other courts on the Condorcetian ground that they provide valuable information).
130. See Sushil Bikhchandani et al., Learning from the Behavior of Others: Conformity, Fads, and Informational Cascades, 12 J. ECON. PERSP. 151, 154-56 (1998).
131. For fascinating experimental evidence, see Robert C Jacobs & Donald T. Campbell, The Perpetuation of an Arbitrary Tradition Through Several Generations of a Laboratory Microculture, 62 J. ABNORMAL & Soc. PSYCHOL. 649 (1961),
132. and Gregory J. Moschetti, Individual Maintenance and Perpetuation of a Means/Ends Arbitrary Tradition, 40 SOCIOMETRY 78 (1977).
133. See STANLEY COHEN, FOLK DEVILS AND MORAL PANICS: THE CREATION OF THE MODS AND ROCKERS (3d ed. 2002). Of course moral judgments might well be a product of relevant information, in which case moral cascades are informational cascades too.
134. See Alan B. Krueger & Jitka Malečková, Education, Poverty, and Terrorism: Is There a Causal Connection?, 17 J. ECON. PERSP. 119, 119 (2003) (suggesting that terrorism "is more accurately viewed as a response to political conditions and long-standing feelings of indignity and frustration that have little to do with economics").
135. See David Schkade et al., Deliberating About Dollars: The Severity Shift, 100 COLUM. L. REV. 1139 (2000).
136. Id.
137. See Andrew F. Daughety & Jennifer F. Reinganum, Stampede to Judgment: Persuasive Influence and Herding Behavior by Courts, 1 AM. L. & ECON. REV. 158 (1999).
138. See David Schkade et al., What Happened on Deliberation Day?, 95 CAL. L. REV. 915 (2007).
139. See Nadler et al., supra note 78 (discussing public outrage over the Court's decision in Kelo).
140. See Schkade et al., supra note 107, at 1164.
141. Cf. PAGE, supra note 19, at 209-11 (suggesting that on factual questions, diverse groups regularly outperform individuals).
142. See id. at 207-12 (emphasizing comparative accuracy of diverse groups).
143. Condorcet has to be careful here. What groups count as powerful, and what groups count as powerless, may not be a mere question of fact; it might well have a normative component as well. See Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985) (discussing how to distinguish groups that deserve special protection under Carolene Products). And if a powerful group is large, Condorcet might hesitate before rejecting its view, notwithstanding its power.
144. See Dahl, supra note 3, at 283-91 (showing that courts rarely reject a public consensus);
145. PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY (Nathaniel Persily et al. eds., forthcoming 2008).
146. Cf. Posner & Sunstein, supra note 102 (arguing that general practice of states and nations has epistemic value, and not concentrating on outrage or any particular affective state).
147. See Lawrence v. Texas, 539 U.S. 558, 572, 576 (2003).
148. Id. at 576.
149. Id. at 572.
150. See VERMEULE, supra note 17, at 254;
151. Thayer, supra note 15.
152. See Thayer, supra note 15, at 144 (noting that laws "which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another;... the constitution often admits of different interpretations; . . . there is often a range of choice and judgment").
153. Id.
154. Id. at 151.
155. Id.
156. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (holding that when Congress has specifically considered the question of an act's constitutionality the "customary deference accorded the judgments of Congress is certainly appropriate").
157. See Posner & Sunstein, supra note 102.
158. See, e.g., KLARMAN, supra note 3 (defending Brown on such grounds);
159. RICHARD A. POSNER, SEX AND REASON 324 (reprint ed. 1994) (defending Griswold on such grounds);
160. Harry H. Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 YALE L.J. 221, 297-311 (1973) (defending Roe on such grounds).
161. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005);
162. Lawrence v. Texas, 539 U.S. 558 (2003).
163. See JOHN HART ELY, DEMOCRACY AND DISTRUST 181-83 (1980).
164. See Robert S. Baron et al, Social Corroboration and Opinion Extremity, 32 J. EXPERIMENTAL SOC. PSYCHOL. 537, 538 (1996) (suggesting that confidence produces more extremity, with the implication that a lack of confidence produces moderation).
165. See Reid Hastie, Review Essay: Experimental Evidence of Group Accuracy, in INFORMATION POOLING AND GROUP DECISION MAKING 129, 133-46 (Bernard Grofman & Guillermo Owen eds., 1983).
166. See id. at 148.
167. The analysis thus far has broader implications. The tension between judicial review and democracy qualifies as such only on the basis of certain understandings of both judicial capacities and democracy itself. The tension is serious if we believe that democratic self-government requires the public, and not the judges, to decide relevant moral questions. But why, exactly, might we think that? The consequentialist and epistemic arguments help to provide answers. If Thayerism is understood through a Condorcetian lens, a deferential judicial role is best defended on the ground that the public is far more likely to be right than the federal judiciary. An evident problem with this position is that a systematic bias, a cascade, or polarization might have led the public in the wrong direction; an additional problem is that the views of the public may not involve any proposition that bears on constitutional meaning. If Thayerism is understood in consequentialist terms, the argument would be that even if judges have special access to the document's meaning, the results will be better, at least on occasion, if they attend to the public's view. It is certainly open for a consequentialist to believe that self-government is an intrinsic as well as an instrumental good, and that any decision to thwart the democratic will creates a bad consequence by definition. My goal with these brief remarks is not to take sides in this large debate, but to specify some of the grounds on which democratic objections to judicial review might be both defended and challenged.
168. For a discussion, see Cass R. Sunstein, Clear Statement Principles and National Security: Hamdan and Beyond, SUP. CT. REV. (forthcoming 2007), available at http://ssrn.com/abstract= 922406. Thayer himself emphasized the need to defer to Congress, not state governments or the President; I understand Justice Thayer, and Thayerism more generally, to suggest a broader posture of restraint.
169. Cf. Kelo v. City of New London, 545 U.S. 469 (2005) (offering a broad interpretation of the "public use" requirement).
170. See Thayer, supra note 15.
171. See VERMEULE, supra note 17 (defending a form of Thayerism on consequentialist grounds).
172. Rochin v. California, 342 U.S. 165, 169 (1952).
173. The test originated in Trop v. Dulles, 356 U.S. 86, 101 (1958).
174. See Roper v. Simmons, 543 U.S. 551, 564-68 (2005) (evaluating whether there was truly a "national consensus" against imposition of a juvenile death penalty and finding it persuasive that a majority of states had rejected such a penalty).
175. See Lawrence v. Texas, 539 U.S. 558, 572, 576 (2003).
176. See VERMEULE, supra note 17, at 239.
177. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), famously holds that courts must respect agency interpretations of ambiguous terms, so long as those interpretations are reasonable. Chevron can therefore be understood as a testimonial to judicial humility in the face of statutory ambiguity, not for Condorcetian reasons, but because of a belief in the superior accountability and technical specialization of the relevant agency.
178. Cf. Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027 (2002) (arguing that statutes might be interpreted by reference to the preferences of the current legislature).
179. But see id.
180. See DWORKIN, supra note 97.
181. See Elhauge, supra note 145.
182. Consider Griswold v. Connecticut, 381 U.S. 479 (1965),
183. in which the Court struck down a ban on the use of contraceptives by married people, a ban that was limited to two states and that was widely regarded as indefensible or even outrageous within the nation. See POSNER, supra note 128, at 326. In a federal system, it is entirely predictable that one state will sometimes engage in actions that other states will find outrageous.
184. See supra notes 139-41 and accompanying text.
185. See Nadler et al., supra note 78 (considering such widespread disapproval with respect to Kelo v. City of New London, 545 U.S. 469 (2005)).
186. See id.
187. But see Griswold, 381 U.S. 479.
188. Validation of the statute in Griswold, even in 1965, would have met widespread public disapproval. See POSNER, supra note 128, at 324-31.
189. Cf. DWORKIN, supra note 97, at 148.
190. I do not mean to suggest that these positions are, in fact, compelled by the original understanding.
191. This is apparently Justice Thomas's view; Justice Scalia has said that Justice Thomas "doesn't believe in stare decisis, period. . . . [I]f a constitutional line of authority is wrong, [Thomas] would say 'Let's get it right.' I wouldn't do that." Stephen B. Presser, Touting Thomas, LEGAL AFF., Jan.-Feb. 2005, at 68, 68-69, available at http://www.legalaffairs.org/issues/January-February-2005/ review_presser_janfeb05.msp.
192. See Prakash, supra note 36, at 2210-11.
193. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CLN. L. REV. 849 (1989).
194. Posting of Randy Barnett to Debate Club, Constitution in Exile?, http://legalaffairs.org/webexclusive/debateclub_cie0505.msp (May 3, 2005, 1:43 P.M.).
195. See RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION (1996).
196. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003);
197. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
198. See DWORKIN, supra note 97, at 239.
199. See, e.g., United States v. Virginia, 518 U.S. 515 (1996) (sex discrimination);
200. Brandenburg v. Ohio, 395 U.S. 444 (1969) (censorship);
201. Brown, 347 U.S. 483 (school desegregation).
202. See DWORKIN, supra note 160;
203. FLEMING, supra note 41.
204. See Texas v. Johnson, 491 U.S. 397 (1989).
205. As many as 79% of Americans disapproved of this decision. Nadler et al., supra note 78, at 16.
206. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963).
207. The rate of disapproval of the Court's school prayer decisions was as high as 67% in the period 1974-2005. Nadler et al., supra note 78, at 16.
208. See Kelo v. City of New London, 545 U.S. 469 (2005).
209. See Nadler et al., supra note 78, at 16 (reporting 80-90% disapproval rate).
210. See Brown v. Bd. of Educ., 347 U.S. 483 (1954).
211. Here the disapproval rate ranged from 40-45%. Nadler et al., supra note 78, at 16.
212. See Roe v. Wade, 410 U.S. 113 (1973).
213. See LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS (2005).
214. See KRAMER, supra note 4.
215. See FLEMING, supra note 41.
216. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
217. Note, for example, President Reagan's executive orders on federalism and takings. Exec. Order No. 12,612, 52 Fed. Reg. 41,685 (Oct. 26, 1987) (requiring that executive agencies follow certain enumerated principles of federalism and consult states to the extent practicable before pursuing policies that would limit state "policymaking discretion");
218. Exec. Order No. 12,630, 53 Fed. Reg. 8859 (Mar. 15, 1988), reprinted in 5 U.S.C. § 601 (2000) (requiring executive agencies to conduct takings impact assessments when making regulatory decisions that may impact private property rights).
219. For a recent example, see Kelo and the public reaction thereto, as explored in Nadler et al., supra note 78.
220. See HANNAH FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION (1967).
221. See JANET E. HALLEY, DON'T: A READER'S GUIDE TO THE MILITARY'S ANTI- GAY POLICY (1999).
222. See BICKEL, supra note 2, at 64-68;
223. HARRY V. JAFFA, CRISIS OF THE HOUSE DIVIDED (1959).
224. BICKEL, supra note 2, at 66
225. (quoting II THE COLLECTED WORKS OF ABRAHAM LINCOLN 256 (Roy P. Basler ed., 1953) (speech at Peoria, Illinois, Oct. 16, 1854)).
226. Id.
227. See BICKEL, supra note 2, at 68-69.
228. See PITKIN, supra note 177.
229. The latter view is implicit in The Federalist No. 10, with its reference to "refin[ing] and enlarg[ing]" the public view. THE FEDERALIST No. 10, at 47 (James Madison) (George W. Carey & James McClellan eds., 1989).
230. For evidence that the moral views of the jury are indeed likely to be representative of the moral views of the public, see Daniel Kahneman et al., Shared Outrage and Erratic Awards: The Psychology of Punitive Damages, 16 J. RISK & UNCERTAINTY 49 (1998).
231. Consider the discussion of the deliberative opinion poll in JAMES S. FISHKIN, THE VOICE OF THE PEOPLE (1995). Fishkin convincingly contends that the results of a deliberative poll, conducted among informed citizens, are far more worthwhile than the results of a mere opinion poll, conducted by asking people simply to state their views on questions on which they have not reflected. A jury has an analogous advantage over the public generally.
232. See, e.g., Steiker, supra note 74.