...judicial conscience 2. Thayer, deference, and democracy 3. Moral consensus in Roper, Atkins, and Lawrence. III. POWER TO THE PEOPLE? CONCLUSION

INTRODUCTION

In at least some hard cases, the Justices of the United States Supreme Court almost certainly moderate their decisions--or avoid deciding altogether--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. In this, Sunstein follows in the footsteps of Alexander Bickel, whose pathbreaking The Least Dangerous Branch (1) was devoted to the same cause. Their emphases are different, however. The heart of Bickel's book is his account of the "passive virtues," such as the justiciability and vagueness doctrines, that courts use to avoid decision or to rule narrowly where broad decision might unduly provoke the public. Sunstein's focus is why judges should care about public outrage in the first place.

He identifies two reasons: one consequentialist, the other epistemic. The consequentialist reason is just what it sounds like. Where public outrage would lead to particularly bad consequences, it may be prudent rather than cowardly for judges to take those consequences into account. The epistemic reason is more complicated. The basic idea is that, under certain conditions, public outrage may embody a collective wisdom superior to the judgment of individual persons, including judges. Where these conditions are met, judges might attend to public outrage out of humility.

There is much to admire in Sunstein's account. He is correct that there are legitimate reasons for judges to care about public outrage, and the two he identifies provide an excellent framework for discussion. He is also correct in recognizing that the strength of these reasons (and any others, though he seems to think others don't exist) depends on a variety of controversial empirical assumptions about the capacities of real-world judges. For instance, if judges cannot reliably predict the incidence, the extent, or the effects of public outrage, the conventional taboo against considering it might be justified in practice, even if there is no convincing reason for judges to ignore public outrage in principle. This is a familiar but extremely important point, and Sunstein's explication of it is superb. Particularly illuminating is his vivid use of hypotheticals to illustrate the complex and often surprising consequences of public outrage (2) and his discussion of the cognitive biases that may lead judges to exaggerate or otherwise misjudge these effects. (3)

So far, so good. But we have still not reached the heart of the question posed in Sunstein's title. To determine whether judges should care about the consequences of public outrage, we need to know whether judges should care about consequences at all (as opposed, say, to original meaning). Assuming they should, we need to know how they should assess the desirability and weight of particular consequences. Perhaps most important, we need to know whether judges should attach any weight to public outrage as such--not the hedonic state outrage implies, (4) or the information it conveys about some exogenously defined constitutional meaning, but the brute fact, arguably significant in a democracy, that a majority of the supposedly sovereign people is bitterly opposed to a particular result. (5)

On these issues, Sunstein has little to say. Taking an approach that distinctly resembles the judicial minimalism he has championed elsewhere, (6) he seems determined to speak to a theoretically diverse audience and therefore to avoid deep theoretical questions--or, as he may regard them, deep theoretical black holes. This approach, which we might call "minimalism in legal scholarship," has an undeniable appeal. In an area fraught with controversy, it enables Sunstein to say something of interest to originalists, pragmatists, and moral rights theorists of all stripes. And it frees him to focus on the narrow subject at hand without the distraction of deep theoretical questions at every turn. Nevertheless, where a great deal turns on such questions--as Sunstein acknowledges a number of times that it does here (7)--his minimalist approach has serious drawbacks.

This Response will address two 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. Part I develops this point in connection with two aspects of Sunstein's consequentialist argument. Second, ruling deep questions off limits can make superficial explanations appear more compelling than they really are while obscuring important deep theoretical alternatives. This point is discussed briefly in Part I and at greater length in Part II in connection with Sunstein's epistemic argument.

A recurring theme is Sunstein's conspicuous neglect of the possibility that judges should care about public outrage out of respect for democracy. When judges invalidate the act of a coordinate branch against the manifest wishes of an outraged majority, they are overruling not just the people's representatives but--in a real sense--the people themselves. That does not mean judges should necessarily stay their hand, but in most cases it means that they should proceed with caution. Or so I shall suggest. It would be impossible to provide a complete defense of this large claim in a brief Response. But Part III provides a preliminary sketch of what such a defense might look like. (8)

Following Sunstein, I shall focus throughout on cases where Supreme Court invalidation of federal or state statutes on constitutional grounds would be likely to outrage a strong majority of the American public. For reasons of space, I offer only a few isolated observations on judicial validation of statutes, statutory interpretation, outraged minorities, and nonjudicial actors.

I. MINIMALISM MEETS CONSEQUENTIALISM

Sunstein's discussion of the consequentialist reason for judges to care about public outrage is limited by his reluctance to engage two deep theoretical questions: Should judges care about consequences at all? And if they should care about consequences, how should they assess the desirability of particular consequences?

A. Consequentialism (Sort of) Defended

The first of these questions is obviously fundamental to Sunstein's consequentialist argument. If the answer is negative, his argument is stillborn. Yet Sunstein's primary response is not to mount a vigorous theoretical defense. Instead, he hedges his bets, considering the strength of the consequentialist reason from the perspective of consequentialism, originalism, and moral rights theory in turn. In effect, he replaces the deep question of "Should judges care about consequences at all?" with the shallower, "Should judges whose theoretical commitments are taken as given care about the consequences of public outrage?" The answer to the latter, of course, depends on the substance of the theoretical commitments we take as given. If and to the extent those commitments make consequences relevant, judges subscribing to them should care about the consequences of public outrage; if and to the extent they do not, not. In this sense, the question is empty. It invites a response that tells us nothing, or next to nothing, that was not implicit in the definition of the theoretical commitments we began by taking as given.

Consider Sunstein's treatment of consequentialism, as exemplified by his fictional Judge Bentham. When Sunstein tells us that Bentham is a consequentialist, he is by definition saying that Bentham cares about all the consequences of his decisions, as well as the consequences of the decision to consider those consequences. We need very little additional information about the world, and no fancy reasoning, to conclude that Bentham should care about public outrage if and when it makes his decisions futile or perverse or has other bad consequences, (9) unless he is unable to predict or assess these consequences reliably or unless considering them will invite harmful strategic behavior, (10) So long as Sunstein is committed to bracketing deep theoretical questions, he can tell us little more than this.

The same holds true for Sunstein's treatment of originalism and moral rights theory, as exemplified by the notional Judges Berger and Hercules. (11) Once we know what Sunstein means by originalism and moral rights theory--in particular, what role he understands each of these theories to permit consequences to play in judicial reasoning--it is a matter of simple deduction (bracketing empirical questions) to determine when and whether Berger and Hercules should consider the consequences of public outrage. (12) It is not so different from asking, "Should a judge who does not much care about consequences much care about consequences?" The interesting question--or at least the operative one; it may be too familiar to be truly interesting--is which of Sunstein's archetypal judges, if any, we should want real-world judges to emulate. But again, on this matter, he has little to say.

Little, not nothing. In two short subsections in the second part of the Article, Sunstein undertakes to defend consequentialism as against "Kantian adjudication." What exactly he means by Kantian adjudication is unclear. Initially, he says that Kantians believe that "[t]he role of the Court is to say what the law is (using the appropriate interpretive method), and its conclusions on that point should be unaffected by the public's will." (13) Read literally, this would make a Kantian of almost anyone who thinks courts should ignore popular opinion, from nonconsequentialist originalists to rule consequentialists who believe judges are likely to be poor prognosticators of public outrage and its effects. Later, however, Sunstein observes that "[t]he core Kantian claim is that people should be treated as ends, not as means." (14) This suggests he is envisioning a much smaller group, comprising only moral rights theorists committed to the specific tenets of Kantian ethical theory--a species rarely found in the wild, at least in the American judiciary.

The crux of Sunstein's brief defense of consequentialism (15) is directed against only the latter group, and needn't much concern us for that reason. But he also offers a broader defense--of the "constitutional law is not a suicide pact" variety. (16) "If total catastrophe really would ensue," the argument goes, "judges should not rule as they believe that principle requires." (17) This is very difficult to disagree with. It cannot, however, provide a general defense of consequentialism. As Sunstein notes, many nonconsequentialist theories, narrowly Kantian and otherwise, recognize the need for a consequentialist override in extreme cases, and do so without surrendering their nonconsequentialist bona tides. (18) Judge Berger, for example, might believe the principle of popular sovereignty limits her judicial authority to enforcing the original meaning of the Constitution, come what may. But she could still be willing to consider "resigning from the bench, or ... engaging in a form of civil disobedience" in truly extreme cases. (19) This condition may have been satisfied in Dred Scott v. Sandford, (20) but it is difficult to think of another case where the actual or potential consequences of public outrage have risen to the level of "total catastrophe." To give Sunstein's consequentialist reason practical bite outside this exceptional context, a broader defense of consequentialism is required.

Sunstein does have another string to his bow. A "consequentialist justification," he insists, "is required for most judgments about what is appropriately considered by either private or public actors." (21) For this reason, he thinks most purportedly nonconsequentialist accounts of adjudication are best explained as resting on rule-consequentialist judgments that "the overall consequences are much better if institutions refuse to take account of certain consequences." (22) I happen to agree with these views. But as Sunstein says of the Kantian exhortation that judges "must remain faithful to the law," they are, at least as stated, "conclusion[s] in search of an argument." (23) The analogies he offers are not much help. It is true, for example, that a defense attorney's duty to represent even guilty clients zealously might be explained by reference to its systemic effects. But this duty might as easily be defended on deontological grounds, such as the dignity interest of all persons in having competent legal counsel to mediate their encounters with the awesome machinery of the state. (24) At any rate, nothing in Sunstein's discussion rules out this possibility, certainly not the fact that "assessing institutional morality [as a form of rule consequentialism] ... permits us to explore whether ... any particular taboo can be justified in consequentialist terms." (25) Besides begging the question it purports to answer, this would require a normative account assigning values to public safety, personal dignity, etc. Perhaps most important, Sunstein does not so much as mention, much less engage, plausible nonconsequentialist arguments that some obligations--for example to the principle of popular sovereignty--bind judges regardless of their consequences. (26) A robust defense of consequentialism would have to...

NOTE: All illustrations and photos have been removed from this article.



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