By this point, Eric well knows my originalist views on constitutional interpretation and how I disagree with Justice Scalia’s version of orignalism; so the first paragraph of Eric’s latest post , where he wonders aloud about what I meant in my criticism of Justice Scalia , must be taken as tongue-in-cheek. There is nothing there I have not said before . But I wonder whether Eric also meant to be ironic in the next paragraph in the same way: He says that ”[n]o one has been able to offer a persuasive defense of [the Warren Court’s] precedents; they are now regarded as simply liberal policymaking—sometimes wise policymaking, but impossible to defend as constitutional decisionmaking.”
I am genuinely curious which decisions he regards as indefensible. Would this include Brown v. Board of Education , which struck down the “separate but equal doctrine” of Plessy v. Ferguson , or Loving v. Virginia , which struck down bans on interracial marriage? First Amendment decisions like Brandenburg v. Ohio and New York Times v. Sullivan ? Perhaps the right to appointed counsel recognized in Gideon v. Wainwright ? Or is his complaint the reapportionment decisions starting with Baker v. Carr and Reynolds v. Sims (some people today think those were shortsighted)? Surely he must mean the guarantees against self-incrimination protected by Miranda v. Arizona , which even our friends in Canada think is the law from watching American police dramas? Perhaps he finds outlandish Heart of Atlanta Motel and Katzenbach v. McClung , which upheld the Civil Rights Act of 1964? Or perhaps he is outraged at South Carolina v. Katzenbach , which upheld the Voting Rights Act? Or perhaps it is Duncan v. Louisiana , which largely completed the project of incorporating the Bill of Rights against the states?
Inquiring minds want to know. Surely many if not most of these decisions were controversial in their time. Does he think that all of these were also indefensible?
I wonder whether Eric really means that he thinks the whole project of constitutional adjudication is indefensible because justices will inevitably be tempted to read their ideological preferences into the law. But if so, it’s hardly clear that the Warren Court deserves special blame. I’m sure Eric would agree that its practices of doctrinal development were hardly unique in the court’s history. The only difference is that during this brief period the Supreme Court was somewhat more liberal than the norm—largely because the nation as a whole was more liberal. During most of its history, the Supreme Court has been a largely conservative institution.
And if that’s the worry, I don’t think that life tenure is the cause. Not much would change if we had only fixed 18-year terms instead of life tenure. Indeed, if we look to state supreme courts, we find that they engage in very similar judicial practices even though state judges are sometimes elected and can be removed from office. Indeed, many of the Supreme Court’s most famous decisions have been preceded by similar decisions under state constitutions. For example, the California Supreme Court struck down a ban on interracial marriage long before the Supreme Court did in Loving v. Virginia .
So the source of Eric’s complaint about judicial decision-making, it seems to me, lies elsewhere. Perhaps we shouldn’t have constitutions with abstract rights guarantees. Then judges wouldn’t go around trying to elaborate them over time in ways that were controversial. That is certainly one solution, and some other countries have such a system. Perhaps at the end of the day, this is Eric’s real objection: that we have not adopted a parliamentary system that lacks broad and enforceable constitutional-rights guarantees like the United Kingdom (at least before the Human Rights Act), New Zealand, or Australia.