Monday, March 03, 2014
In Why We Need More Judicial Activism (the subject of a great Green Bag micro-symposium), Suzanna Sherry identified the eight universally condemned Supreme Court decisions (Spoiler Alert: Bradwell v. Illinois, Minor v. Happersett, Plessy, Abrams, Buck v. Bell, Gobitis, and Hirabayashi and Korematsu). The unifying theme is that all have been, if not overruled, certainly discredited, such that none remains good law.
But are there cases that remain genuinely good law that are similarly disliked by both sides of political and constitutional debates and that both sides would like to see overruled? Two come to mind.
One is DeShaney. Liberals would like to see the Fourteenth Amendment impose affirmative obligations on government to protect the public; conservatives see affirmative government obligations to protect the public as a possible route to prohibiting abortion (my thoughts here were triggered by Steve's post about North Dakota's personhood amendment, which, as I said in the comments there, arguably overrules DeShaney at the state level and imposes some sort of affirmative obligations on government). A second, I think, is Slaughterhouse. Both sides would like a textually sounder basis for incorporation through Privileges of Immunities (although Due Process incorporation is so well-established at this point that the issue is more formalist). And since that was an economic liberty case, conservatives would like to see it come out differently.
What other cases might fit the bill? And am I wrong about these?
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PLIVA v Mensing makes zero sense, and completely ignores the manner by which pharmaceutical suppliers and consumers (and physicians) interact.
Posted by: Jojo | Mar 3, 2014 1:09:18 PM
I don't recall ever hearing any conservative say that DeShaney was wrongly decided.
Posted by: Orin Kerr | Mar 3, 2014 1:21:53 PM
Michael Paulsen spoke about this during a workshop he did at FIU last year, as I recall in the context of a paper arguing for fetal personhood. The point was that, having recognized fetal personhood, government had some obligation to protect, subject to the limitations of DeShaney.
Posted by: Howard Wasserman | Mar 3, 2014 1:55:30 PM
Howard, I wasn't at the FIU workshop, but I'm happy to accept that one conservative has said that DeShaney was wrongly decided. But how do you get from there to the view that conservatives "universally condemn" DeShaney?
Posted by: Orin Kerr | Mar 3, 2014 2:01:42 PM
I wasn't necessarily saying universally condemned, as much as disliked by both sides. I don't know if there is a groundswell or if Paulsen is out on his own. But the logical extension of personhood arguments at least potentially runs up against DeShaney, so something has to give.
Posted by: Howard Wasserman | Mar 3, 2014 2:18:18 PM
In my experience, the old saying about Jews -- "two Jews, three opinions" -- applies to conservative legal theorists, too. Given that, identifying one conservative who has criticized a case doesn't tell us anything about conservative opinion as a whole.
Posted by: Orin Kerr | Mar 3, 2014 2:57:28 PM
I wasn't aware that a majority of conservatives supported personhood arguments. I think a large majority of conservatives think Roe was wrongly decided for reasons other than, and exclusive of, a constitutional obligation to protect fetal persons. In fact, I bet if you took a poll you would find that a majority of conservatives think personhood arguments are an unpalatable path to a result they'd like, precisely because they would upset DeShaney, which they also like. I also doubt that a majority of liberals still hope to locate affirmative obligations to protect the public in the Fourteenth Amendment; I suspect you were right twenty years ago. But you might be right about the liberal side of the equation.
Posted by: Asher Steinberg | Mar 3, 2014 6:13:08 PM
I'm not sure that liberals have given up on affirmative obligations or that they recognize it's a lost cause under DeShaney. There are an often lot of cases every year in which plaintiffs desperately try to plead around DeShaney through state-created danger or equal protection, so they're still trying to fight government failures to protect.
Posted by: Howard Wasserman | Mar 3, 2014 9:06:13 PM
Although I think Employment Division v. Smith, 494 U.S. 872 (1990), was correctly decided, Congress's popular bipartisan reaction to the decision (enacting the Religious Freedom Restoration Act) suggests that I am in a very small minority. Conservatives who hope that the Supreme Court will presently allow Hobby Lobby to deny contraceptive coverage to its employees seem likely to disagree with Smith, as did liberals who favored the right of Native American Indians to smoke peyote in Smith itself.
BTW I would have thought Dred Scott should have made Prof. Sherry's original list.
Posted by: Ken Katkin | Mar 4, 2014 1:40:55 PM
Ken: Good call. As I recall, Prof. Sherry addresses Dred Scott as a case that, even if universally wrong, had little practical effect.
Posted by: Howard Wasserman | Mar 4, 2014 2:01:43 PM
Yes, I just took a look at Prof. Sherry's article. Using the "small practical effect" criteria by which (in part) she excluded Dred Scott from consideration, it would seem that Gobitis should also have been excluded. Prof. Sherry may have been stacking the deck in order to equate notoriety with minimalism.
Posted by: Ken Katkin | Mar 4, 2014 2:34:57 PM
Perhaps. Or there is a difference between practical effect being limited by war and constitutional amendment and practical effect being limited because the Court changed its mind.
Posted by: Howard Wasserman | Mar 4, 2014 4:10:39 PM
Howard, I would consider a bad judicial decision that triggered a civil war and was formally overruled by a constitutional amendment to have had more of a "practical effect" than a bad judicial decision that the Court decided to overrule the very next time the same question arose, just a few years later. So I must not be understanding how you and Prof. Sherry are using the phrase "little practical effect." Also, Dred Scott was the first US Supreme Court decision to articulate and rely on the doctrine of substantive due process, which continues to have practical effect today.
Posted by: Ken Katkin | Mar 4, 2014 11:22:04 PM
I should add that I find Sherry's analytical framework to be highly problematic for reasons I explored here:
Posted by: Orin Kerr | Mar 5, 2014 1:08:35 AM
For what it's worth, I've defended DeShaney and Castle Rock: http://online.wsj.com/news/articles/SB113538337418930952?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB113538337418930952.html&fpid=2,7,121,122,201,401,641,1009
Posted by: Walter Olson | Mar 9, 2014 3:58:43 PM