Judges as Superheroes: The Danger of Confusing Constitutional Decisions with Cosmic Battles

27 Pages Posted: 28 Oct 2020 Last revised: 12 Nov 2020

Date Written: September 8, 2020


In 2019, a federal court of appeals, sitting en banc, decided Manning v. Caldwell, 903 F.3d 264 (4th Cir. 2019). The question in Manning was the constitutionality of a Virginia statute providing for a civil process of adjudicating an individual a “habitual drunkard.” A person so designated was subject to unique criminal penalties for obtaining or even possessing alcoholic beverages. A group of homeless Virginians challenged it, alleging that they were literally unable to comply with the criminal prohibitions or avoid apprehension because of their addiction and homelessness: their arguments were that the statute was void for vagueness, and (as to them and others similarly situated) a violation of the Eighth Amendment under Robinson v. California, 370 U.S. 660 (1962). A sharply divided Fourth Circuit held that both arguments were sound, and the law unconstitutional. One of the judges in the minority, Judge J. Harvie Wilkinson, III, filed two dissents, one laying out the reasons for his dissent that all but one of the dissenters joined, and a second (joined by no one else) justifying the tone of his principal dissent in response to a concurring opinion that objected to his language.

This essay argues that Manning’s significance goes beyond its undeniable importance to individual Virginians and state officials. Judge Wilkinson’s two opinions portray the majority’s conclusions as indefensible, an egregious act of judicial arrogance that “usurps the American Constitution” in order to implement the majority’s own policy preferences. The justification for his extraordinarily harsh language about his colleagues, whom he says he admires, is that the decision is not simply an error but a tremendous blow to the Constitution and to American democracy. As my essay attempts to show, this is a bizarrely hyperbolical description of Manning: there are reasonable legal arguments for and against the two constitutional claims, and the majority’s reasoning is therefore hardly indefensible even if, on balance, one is unpersuaded. This raises the question why Judge Wilkinson, a seasoned and well-respected appellate judge, came to view the decision as he did, and to use language inconsistent with even minimal politeness to his colleagues.

The answer Judges as Superheroes develops is that the analytical oddity and rhetorical tone of Judge Wilkinson’s opinions is not a momentary lapse by an individual judge, but an indication that a long-standing problem with constitutional disagreement on the Supreme Court is spreading to the federal courts of appeals. For decades it has been common for the justices, particularly in writing dissents, to portray the positions they reject as not just mistaken but as fundamentally illegitimate, incapable of swaying any judge respectful of the limits on the judicial function. Cases involving deep disagreement are, therefore, not so much divisions of opinion among lawyers all committed to the common enterprise of resolving legal disputes, but victories or defeats in a cosmic struggle between constitutional Good and Evil. This apocalyptic view, I maintain, is erroneous and destructive. Manning suggests that circuit judges too, are succumbing to the temptation to see themselves as superheroes battling for the Right against colleagues who are, inevitably, champions of Wrong. The decision’s broader significance is as a warning, for judges and for all of us, that our system of judicial review rests on a less-inflated understanding of the role of judges in constitutional cases.

Keywords: judges, judicial review, constitutional, appellate, dissent, polarization

Suggested Citation

Powell, H. Jefferson, Judges as Superheroes: The Danger of Confusing Constitutional Decisions with Cosmic Battles (September 8, 2020). South Carolina Law Review, 2021, Duke Law School Public Law & Legal Theory Series No. 2020-74, Available at SSRN: https://ssrn.com/abstract=3689230 or http://dx.doi.org/10.2139/ssrn.3689230

H. Jefferson Powell (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7168 (Phone)

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