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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. INVALIDATIONS AND CONSEQUENCES A. The Problem B. Kantian Adjudication C. Interpretive Theories and Consequences D. Passivity, Minimalism, and Deference E. Consequentialism 1. Futility, perversity, and overall harm 2. Judicial self-preservation 3. Assessing consequences 4. Judicial fallibility in assessing consequences: of rule-consequentialism and system design 5. Kantian adjudication revisited and some speculations about institutional morality 6. Judicial hedometers and consequentialism writ (very) large F. Bentham's Conclusion II. HUMILITY, INVALIDATIONS, AND THE CONDORCET JURY THEOREM A. The Basic Argument B. Who's Outraged, and What Are They Outraged About? C. Biases and Cascades 1. Bias 2. Cascades a. Basic processes b. Outrage cascades, meaning entrepreneurs, and polarization 3. Hesitation and humility without the CJT D. A Practical Problem and Condorcet's Conclusion E. Beyond Outrage (Again) III. OUTRAGE AND VALIDATIONS (WITH NOTES ON STATUTORY INTERPRETATION) A. The Problem B. Thayerians and Outrage C. Complications IV. ORIGINALISM, MORAL READINGS, AND OUTRAGED MINORITIES A. Originalism 1. Originalism and consequences 2. Originalism and epistemology B. Moral Readings C. Outraged Minorities and Actual Practices V. NONJUDICIAL ACTORS: BENTHAM AND CONDORCET IN THE DEMOCRATIC BRANCHES A. We the People B. Elected Officials C. Juries CONCLUSION
INTRODUCTION
Judicial rulings can, and sometimes do, provoke public outrage. If the Supreme Court ruled that states must recognize same-sex marriages, national politics would undoubtedly be affected, and a movement for a constitutional amendment would be all but inevitable. If the Court said that the Establishment Clause forbids the use of the words "under God" in the Pledge of Allegiance, (1) the Court would face a great deal of public outrage. If the Court struck down measures designed to reduce the risk of terrorism, especially in a period in which that risk is acutely felt, significant parts of the public would be outraged as well. Many judges are drawn, on occasion, to interpretations of the Constitution that would outrage large segments of the public. How, if at all, should courts think about, or deal with, the prospect of outrage?
A detailed literature attempts to show that the Supreme Court's decisions are generally in line with public opinion and that, in light of the Court's actual practices, the "counter-majoritarian difficulty" (2) is far less difficult than it might seem. (3) To this extent, a degree of "popular constitutionalism," (4) captured in a measure of public control of constitutional meaning, seems to be alive and well. The Court rarely embarks on courses of action that are wildly out of step with the strongly held views of citizens as a whole. (5) But there can be no question that the Court's decisions can provoke public outrage, and that the Court sometimes works to reduce the likelihood and intensity of that outrage. (6)
The most famous example is Naim v. Naim, (7) in which the Court refused to rule on the constitutionality of a ban on racial intermarriage, largely because it feared that its ruling would provoke outrage, in a way that might diminish the Court's own authority. (8) It is reasonable to speculate that the Court's refusal to decide the constitutionality of the use of the words "under God," in the Pledge of Allegiance, had similar motivations. (9) The invocation of the "passive virtues," including justiciability doctrines, is often understood as an effort to ensure that the Court's timing is "prudent," in the sense of reducing the danger that judicial decisions will produce public reactions that will compromise the Court's goals. (10)
This Article addresses the normative question of whether judges should attend to outrage, not the positive question of whether they do so. With respect to anticipated public outrage, the positive issues have received sustained attention, whereas the normative issues have been explored only episodically. (11) My principal goal is to investigate whether and why anticipated public outrage should matter to judicial decisions. (12) At first glance, an affirmative answer seems quite jarring; many people believe that courts should interpret the Constitution without attention to the possible objections of the public. (13) On a conventional view, the central goal of constitutional law, or at least judicial review, is to impose a check on public judgments, and sometimes to override those judgments even if they are intensely held. It would be odd to say that the Supreme Court should not protect free speech or should allow racial discrimination if and because it anticipates that the public would be outraged by protection of free speech or by bans on racial discrimination. The idea that the Court should anticipate and consider the effects of public outrage seems inconsistent with the role of an independent judiciary in the constitutional system.
Questioning the conventional view, I shall suggest two reasons why public outrage might matter--and in the process attempt to explain the Court's occasional reluctance to trigger outrage, as embodied in the use of justiciability doctrines, narrow rulings, and deference to elected officials. The first reason is consequentialist; the second is epistemic. The consequentialist claim is that if a ruling would turn out to have terrible effects, judges should take those effects into account. This claim depends on an admittedly controversial assumption, to the effect that in deciding how to rule, judges should pay attention to the consequences of their decisions. It is tempting to reject that assumption and to think that judges should rule as they see fit even if the heavens would fall. (14) But if the heavens really would fall, perhaps judges should not rule as they see fit.
The epistemic reason involves humility. Judges cannot always know whether they are right, even about the meaning of the Constitution, and intense public convictions may provide relevant information about the correctness of their conclusions. Whether public convictions are pertinent depends in part on their foundations and in part on the prevailing method of constitutional interpretation. If the prevailing method makes constitutional adjudication turn on disputable judgments of fact or morality, the beliefs of the public may indeed be relevant. It is important, however, to know whether these public beliefs are a product of a systematic bias or of cascade effects. If so, there is much less reason to consider them, because they lack epistemic credentials.
To assess the consequentialist and epistemic reasons for considering public outrage, it is necessary to distinguish between invalidations and validations of decisions of the elected branches. As we shall see, the two raise different considerations. If courts invalidate a law, and the consequences of the invalidation are bad, the public has no means of response (short of a constitutional amendment). It follows that if courts wrongly invalidate a law, the result is likely to stick. For these reasons, the strongest arguments for considering outrage apply in the context of invalidations. By contrast, courts have far less reason to consider outrage before validating democratic decisions; if the public greatly objects to a law, it can respond by changing that law through democratic means. Statutory interpretation generally belongs in the same category as validations.
There is, however, a plausible rule-consequentialist argument for asking judges not to consider public outrage even in the context of invalidations. Judicial judgments about outrage may be unreliable, and consideration of outrage may produce excessive judicial timidity. While plausible in the abstract, this argument depends on contestable empirical assumptions and may turn out to be wrong. If it is clear that a decision would outrage the public and that such outrage would be both intense and very harmful, courts have reason to hesitate before invalidating the decisions of the elected branches.
The Court's seemingly opportunistic use of justiciability doctrines, and puzzlingly narrow and shallow rulings, are often best defended in this light. I shall ultimately conclude that while the epistemic arguments for considering the effects of outrage turn out to be fragile, the consequentialist arguments justify judicial hesitation in some admittedly unusual (but important) domains.
A recurring issue is whether judges have enough information to be confident about either their judgments on the merits or their assessments of the existence and effects of outrage. It is helpful to begin by assuming that they have such information and seeing how the analysis proceeds on that (admittedly unrealistic) assumption. Once the assumption is relaxed, the analysis must be changed. There is little reason for courts to attend to public outrage if judges lack information about the likely effects of their rulings but have a great deal of information about the proper interpretation of the Constitution. Those who want courts to attend to public outrage are likely to believe that judges are not at sea in assessing consequences--and more fundamentally to accept the view, associated with James Bradley Thayer, that judges do not have special or unique access to constitutional meaning. (15) For those who accept Thayer's position, attention to public outrage, or to public judgments more generally, might well be justified on epistemic grounds.
While my focus is on public outrage and its consequences, the discussion will bear on several other questions, some of them quite large. Nearly every public institution is barred from taking account of certain considerations that plainly ought to matter from a consequentialist perspective. The ban on consideration of certain factors often operates as a legal or moral taboo; but why? The most plausible answer is that in some settings, the overall consequences are much better if institutions refuse to take account of certain consequences. A larger implication of this answer is that in both the private and public spheres, "role morality"--the particular moral principles associated with particular social roles--is most sensibly justified on rule-consequentialist grounds. As we shall see, the argument for refusing to consider outrage and its effects is best defended on those grounds.
If the analysis of the consequentialist and epistemic arguments has force, it should also have general implications for those who favor "popular constitutionalism" (16) and for those who are skeptical about the institution of judicial review on democratic grounds. (17) Some of the best arguments for popular constitutionalism, and for challenges to judicial review, may well be epistemic in character; perhaps the citizenry has a better understanding, under some circumstances, of how the founding document should be construed. (18) But I shall raise serious questions about both consequentialist and epistemic arguments for considering outrage. By understanding the limitations of those arguments, we shall be in a better position to assess the claims of those who favor popular constitutionalism and those who question judicial review in the name of democracy.
A general lesson is that no conclusions about the proper response to outrage and its effects, popular constitutionalism, or judicial review can be established in the abstract, or through large-scale claims about the goals and nature of self-government. A great deal depends on empirical assumptions and on the real-world capacities of various institutions.
As we shall see, the epistemic argument for considering outrage is based on the general idea that large groups of people are highly likely to be right, at least if most group members are likely to be right. This idea helps to explain recent enthusiasm for the "wisdom of crowds." (19) With respect to constitutional interpretation, however, crowds may not be so wise, because they may suffer from a systematic bias, or because their judgments may be a product of informational cascades or group polarization, often induced by what we might call meaning entrepreneurs. An understanding of the problems introduced by systematic biases, and by cascade and polarization effects, bears both on popular constitutionalism and the risk that large groups may be quite mistaken.
This Article comes in five parts. Part I discusses invalidations and consequentialist arguments for considering public outrage. Part II explores the possibility that when outrage is anticipated, judges should take it into account for epistemic reasons. Part III turns to the case of validations, with brief reference to the question of statutory interpretation. Part IV discusses approaches to constitutional interpretation that seem to counsel against considering outrage. Originalism is the main example here, but those who emphasize "moral readings" of the Constitution might also be skeptical of the idea that judges should consider outrage. Part IV also explores minority outrage. Part V briefly discusses the relevance of the consequentialist and epistemic arguments for others exercising public authority, including presidents, legislators, governors, mayors, and jurors. A primary claim in Part V is that when officials consider public outrage, they might be humble rather than cowardly, acting as they do because they believe that their own judgments are imperfectly reliable.
I. INVALIDATIONS AND CONSEQUENCES
Let us begin with cases posing the question whether anticipated public outrage should play a role in a judge's decision whether to vote to invalidate a decision of the elected branches, whether state or federal, on constitutional grounds. As we shall see, such cases present the strongest arguments for considering outrage, because the public cannot easily correct judicial invalidations that produce bad consequences. Throughout I shall assume that a strong majority of the public, rather than a minority, is outraged; I shall turn to the case of minority outrage in due course. (20)
A. The Problem
Suppose that a member of the Supreme Court, Justice Bentham, is convinced after due deliberation of the following propositions:
1A. The ban on same-sex marriages is a violation of the Equal Protection Clause.
1B. The ban on polygamous marriages is a violation of the Due Process Clause.
1C. The use of the words "under God," in the Pledge of Allegiance, is a violation of the Establishment Clause.
1D. Capital punishment is inconsistent with the Eighth Amendment.
1E. The President may not commit troops to a military conflict without either a formal declaration of war or an authorization to use force from Congress.
1F. Racial segregation in a high-security prison is a violation of the Equal Protection Clause.
Suppose that all six of these propositions are at issue in cases before the Court (it is an exciting term). In all six cases, the Court is deadlocked 4-4; Justice Bentham has the deciding vote. True to his name, Bentham supports propositions 1A-1F with close reference to consequentialist considerations; he has chosen his theory of constitutional interpretation on consequentialist grounds, and he applies his theory in a way that takes account of consequences. (21) Suppose finally that Bentham believes that if he votes as his convictions suggest, there will be extremely serious public opposition, going well beyond disagreement to outrage. In all six cases, he believes that the Court's decision will become highly relevant to national politics, and that those who side with the Court, and even those who do not vigorously oppose it, will suffer badly.
In cases 1A-1D, he believes that many officials will refuse to accept the Court's decision, and the Constitution will be amended to overturn the Court's decision. In case 1E, troops have already been committed, and Bentham thinks that from the standpoint of national security and protection of lives of American soldiers, invalidation would be worse than unfortunate. In case 1F, Bentham believes that if he votes in accordance with his commitments, so as to require immediate desegregation, officials will refuse to obey, and segregation will continue. Let us stipulate that Bentham thinks that all of these consequences would be very bad. How should Bentham vote?
To orient the discussion, let us begin with two simplifying assumptions (eventually to be relaxed). First, Bentham has no doubt at all about the correctness of his views in the six cases. He is certain, and he is certain that he has excellent reason to be certain, that he is right about the proper interpretation of the Constitution (putting outrage and its effects to one side). Second, Bentham has no doubt about his predictions about the consequences of the Court's decision. He happens to have an entirely accurate crystal ball, and he knows what will happen if the Court does as he thinks best, as a matter of principle. Bentham is aware that different consequences might play a different role in his assessment about what to do. Perhaps a constitutional amendment, overturning the Court's decision, is acceptable, whereas a significant increase in the risk to national security is much less so. I will return to these questions shortly; let us simply stipulate that Bentham has good reason to think that if he votes as he sees fit, very bad consequences will follow.
For Bentham, the ultimate conclusion is straightforward. In cases that are rare but important, he will attend to outrage and its effects. Unsurprisingly, Bentham is a committed Benthamite; his own theory of interpretation is consequentialist, and he is entirely willing to consider the consequences of his rulings, including those consequences that stem from public outrage. He is aware that some judges adopt theories of interpretation on nonconsequentialist grounds, but he thinks that if the consequences of a judicial ruling would be especially bad, all judges should be prepared to take them into account.
Bentham does take the possibility of rule-consequentalism very seriously. He knows that if judges investigate consequences in particular cases, the consequences might be very bad. He is aware that a clear, firm rule might reduce the costs of decisions and the costs of error, as compared to a situation in which judges make case-by-case assessments of the consequences. Bentham is willing to listen to the proposition that on rule-consequentialist grounds, he should not consider outrage and its effects, because such consideration might lead to undue judicial timidity, encourage strategic behavior, or otherwise distort the judicial process. In the end, however, Bentham rejects the rule-consequentialist argument, concluding that in unusual cases, consideration of outrage is appropriate and he will support use of the passive virtues, narrow rulings, and deference to elected officials.
These are Bentham's conclusions. Let us see how he arrives at them.
B. Kantian Adjudication
Some judges do not attend to outrage at all. Perhaps Bentham (notwithstanding his name) will be willing to consider a practice of Kantian adjudication: even if the heavens will fall, the Constitution must be interpreted properly. Indeed, Kantian adjudication appears to be the informal working theory of judges and lawyers, so much so as to make it plausibly outrageous for judges to defer to outrage. Though actual judicial practices suggest a far more complicated picture, (22) the idea of Kantian adjudication seems to capture the conventional view about how courts should approach public outrage and its potentially harmful effects. Many and probably most judges and lawyers believe that public outrage is neither here nor there, and that judges' solemn duty is to interpret the Constitution as they see fit; one of my goals here is to see on what grounds this conventional belief might be best defended.
According to those who endorse Kantian adjudication, the proper interpretation of the Constitution has nothing to do with what the public believes or wants. The 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. (23) Indeed, a sharp separation between law and politics might be thought to depend, crucially, on a commitment to Kantian adjudication. Compare the domain of statutory interpretation. Suppose that Bentham believes that the Endangered Species Act of 1973 (24) compels the termination of a popular and nearly completed project, (25) or that Title VI of the Civil Rights Act of 1964 (26) permits affirmative action; (27) suppose too that both of these rulings will provoke public outrage. At least at first glance, it would seem implausible to say that Bentham should alter his votes about statutory meaning to avoid such outrage. (We will return to the question why this is so. (28) Bentham should consult the standard sources of statutory meaning, above all the enacted text, and the risk or reality of outrage is immaterial.
In the context of potential invalidations, the argument for Kantian adjudication might seem even more forceful. Why should judges uphold unconstitutional measures--for example, racial discrimination or detention without due process of law or restrictions on free speech--merely because the public would be outraged if they struck down those measures? Deference to public outrage seems hopelessly inconsistent with the role of judges in a constitutional system.
But for two reasons, there is a serious question whether judges should be unconditionally committed to Kantian adjudication. The first reason is that even Kantians typically believe that moral rules can be subject to consequentialist override if the consequences are sufficiently serious. (29) If total catastrophe really would ensue, judges should not rule as they believe that principle requires. Suppose that the consequence of a ruling consistent with 1E would be to endanger national security; perhaps judges should refuse to issue that ruling. Consider in this regard Justice Jackson's suggestion that his conclusion that courts should not enforce the military order to detain Japanese-Americans on the West Coast need not be taken to "suggest that the courts should have attempted to interfere with the Army in carrying out its task." (30)
Or suppose that the consequence of a ruling consistent with 1A would be merely to hasten a result that would have taken place without the Court's invalidation, while also heightening political polarization, promoting the electoral prospects of those who reject same-sex marriage, increasing hostility to gays and lesbians, and eventually leading to a constitutional ban on same-sex marriage. In this way, a ruling consistent with 1A would prove self-defeating in the particular sense that it would greatly decrease the likelihood that same-sex marriages would ultimately be recognized. (31) Even a committed Kantian adjudicator might well hesitate to rule in the way indicated by 1A.
The second and more fundamental reason is that it is not clear that the principle of Kantian adjudication makes much sense, at least if it is defended on Kantian grounds. The core Kantian claim is that people should be treated as ends, not as means. (32) One person should not lie to another, or trick another into doing his bidding, because lies and tricks treat people as mere instruments, and do not give them the respect that they deserve. Is Kantian adjudication necessary to ensure that people are treated as ends rather than as means?
Perhaps the answer is affirmative. Suppose that Justice Bentham hesitates to invalidate a law banning same-sex marriage, because he believes that the public will react intensely, in a way that will produce overall harm. The plaintiffs might ask: if Justice Bentham fails to invalidate the law, not on the ground that he believes it to be constitutional, but to avoid other adverse consequences, is he not treating us as means to other ends? Why should our rights be sacrificed because their vindication would produce bad consequences? Justice Bentham might respond that in taking account of the effects of his ruling, he is not treating anyone as a means. He is concerned with the protection of fights, and he fears that rights, properly conceived, might ultimately be undermined if he rules in the plaintiffs' favor. To assess that concern, we would have to understand exactly what sorts of adverse consequences he fears. I will take up that question shortly. For now, the simple point is that whether Justice Bentham is violating Kantian strictures is likely to depend on why he hesitates to protect the rights in question.
The most natural defense of Kantian adjudication lies in the thought that the judiciary must remain faithful to the law; whatever judges might think of Kant, their duty is to say what the law is (and hence to disregard public disapproval, however intense). In the end, this conclusion may be fight, but as stated, it is a conclusion in search of an argument. I shall ultimately suggest that Kantian adjudication is best understood as a kind of moral heuristic, (33) justified on rule-consequentialist or systemic grounds. The claim must be that certain people in certain roles ought not to consider certain consequences, because consideration of such consequences would likely lead to bad consequences. If, for example, the Supreme Court decided voting rights cases by asking whether one or another decision would have good consequences by helping the best political candidates, the social consequences would not likely be good. In short, the intuitive judgment that certain consequences, or all consequences, are off-limits to certain officials might itself have to be justified on consequentialist grounds. But to say this is to get ahead of the story.
C. Interpretive Theories and Consequences
If Bentham is inclined to consider the effects of outrage, there is an immediate puzzle: What is the theory of constitutional interpretation that gives rise to Bentham's judgments in cases 1A-1F? Is it a consequentialist theory? Does Bentham hold it because of its consequences? A consequentialist had better give an affirmative answer. At first glance, any judgment about whether judges should consider outrage and its effects turns on the underlying theory of interpretation.
To come to terms with this point, we should distinguish between Bentham's theory of interpretation and Bentham's theory of adjudication. We could imagine a judge who has a consequentialist theory of both interpretation and adjudication, that is, a judge whose views about constitutional interpretation depend on the consequences and who is alert to consequences in deciding how, exactly, to rule. Justice Stephen Breyer and Judge Richard A. Posner appear to fall in this category. (34) Their accounts of interpretation are based on consequences, and they...
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