Well, Should They?: A Response to 'If People Would Be Outraged By Their Rulings, Should Judges Care?'

Abstract

In at least some hard cases, the justices of the United States Supreme Court almost certainly moderate their decisions so as not to provoke the public. Cass Sunstein's characteristically insightful and engaging article is an attempt to justify this practice, and in the process, to define its proper limits. He does not, however, reach the heart of the question posed by his title. Rather, taking an approach that distinctly resembles the judicial minimalism he has championed elsewhere, he seems determined to speak to a theoretically diverse audience and therefore to avoid deep theoretical questions. This approach, which we might call "minimalism in legal scholarship," has an undeniable appeal. Nevertheless, where a great deal turns on deep questions, as it does here, the approach has serious drawbacks. This Response will address three of them: First, refusing to confront deep theoretical questions can seriously limit the interest of the remaining avenues for discussion, at least where the deep questions are really central. Second, ruling deep questions off limits can make superficial explanations appear more compelling than they really are while obscuring important deep theoretical alternatives. Third, examining deep questions in a fresh context can cast them in a revealing new light. A recurring theme is Sunstein's conspicuous neglect of the possibility that judges should care about public outrage out of respect for democracy.

Keywords: Constitutional Law, Legal Theory, Democracy, Public Outrage, Backlash, Minimalism, Originalism, Dead Hand, Condorcet, Condorcet Jury Theorem