Do we want our judges to be heroes? Liberals have bracing and inspirational memories of judicial heroism on the Supreme Court—justices who fought for racial equality and individual autonomy against legislators who wanted to restrict women’s reproductive rights and uphold segregation. They remember judges who took on the criminal justice system in the 1960s and 1970s, securing representation for indigent defendants and protecting them from coercive interrogation. There were some who fought heroically and—for a time—successfully against the death penalty. And there were the heroes on the Court last year in Obergefell v. Hodges who held that the US Constitution forbids bans on same-sex marriage. These were justices who were prepared to keep faith with what they saw as the values of the Constitution, even if the particular application of those values was not dictated by the constitutional text.
Of course a justice’s first loyalty is to the Constitution itself. But better surely a heroic fight in defense of liberal values implicit in the document than, for example, the sort of surrender to the explicit text of Article IV that explained the abject attitude of the Court toward slavery in the nineteenth century—the greatest abuse of individual rights by far in the history of the republic, against which the Court never lifted a finger. Indeed it intervened in favor of slavery in Prigg v. Pennsylvania (1842), in which it struck down a law in a free state that had tried to prohibit slave-catching. The penchant for judicial heroism in the last sixty years is explained in large measure by memories of an earlier reticence that had led the Supreme Court all too often to defer quietly to injustice. In the second half of the twentieth century, liberal law professors hoped for many cases like Brown v. Board of Education (1954). They thought that through their students (as clerks), and through their own academic writings, they could urge upon a heroic Supreme Court the task of rebuilding the country on principles of liberty and equality.
The trouble with heroes, however, is that one man’s hero is another man’s villain. It all depends on the values that the judicial hero finds in the Constitution. Most of us agree with the values relied on in Brown; many accept the principles about private choice that were deployed heroically in Obergefell and in the great abortion case Roe v. Wade (1973). But what about the heroism of Chief Justice Roger B. Taney in Dred Scott v. Sandford (1857), who managed to discover values in the Constitution that precluded the possibility of African-Americans ever attaining citizenship? In Cass Sunstein’s new book—a study of the “personae” that Supreme Court justices may take on—Taney counts “unquestionably” as a hero, as do the justices who voted in a majority to strike down labor legislation in Lochner v. New York (1905). The late Justice Antonin Scalia, we are told, used a heroic…
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