Judicial Regrets

Abstract

U.S. Supreme Court Justices have often expressed regret about their most consequential rulings and opinions. Chief Justice Earl Warren lamented his 1955 Brown v. Board of Education opinion ordering desegregation “with all deliberate speed”—ambiguous phrasing that ultimately enabled delays in integration. Justice Lewis Powell recanted his 1986 opinion in Bowers v. Hardwick, which upheld a Georgia law criminalizing same-sex intimacy. In Grutter v. Bollinger, Justice Sandra Day O’Connor predicted that affirmative action policies would no longer be needed twenty-five years later—a prediction she later acknowledged was mistaken. These examples, among others discussed in this Article, illustrate that judicial regrets are frequent and poignant, spanning several areas of law.

Despite their significance, judicial regrets remain largely unexplored in American legal scholarship. This Article addresses this phenomenon by drawing on multidisciplinary research on regret, previously unpublished judicial survey data, and judicial case studies. It examines how the law might better account for judicial regret and underscores insights about law and judging that stem from deeper understandings of it. Because judicial regret can catalyze legal reforms, rectify past harms, and influence legal interpretations, this Article proposes ways to incorporate it into constitutional interpretation and the treatment of precedent. By contemplating the legal and normative significance of this neglected judicial emotion, this Article aims to help the legal community avoid collectively discounting regret.