Academic journal article Vanderbilt Law Review

On the Merits: A Response to Professor Sherry

Academic journal article Vanderbilt Law Review

On the Merits: A Response to Professor Sherry

Article excerpt

It is accepted wisdom among constitutional law scholars that the Supreme Court is now considerably more conservative than it was during the tenure of Chief Justice Earl Warren.1

Professor Sherry's Article has three parts. The first is doctrinal and undertakes to demonstrate that the above quoted wisdom is not only false, but patently so. It is apparent, this Part argues, that the current Court has not drifted toward the "right," but has steadfastly held to the principle of justice that animated the Warren Court.2 This is the principle of "formal neutrality," which generally holds that government may never distinguish among its citizens on the basis of race, creed, or color.

Professor Sherry's second project is to explain why constitutional scholars have failed to recognize this obvious consistency.3 Her ultimate explanation is somewhat involved. In outline it proceeds as follows. It is the academy, not the Court, that has changed. In particular, the modern academy has rejected neutrality. Moreover, it has rejected neutrality not only in its incarnation as the substantive moral principle of formal neutrality, but also in its incarnation as the epistemological meta-principle that substantive moral principles can be justified by appeal to neutral, objective reasons. The academy's critique of the current Court as "conservative" expresses this twin rejection of formal neutrality and of neutrality as objectivity. The academy condemns the Court's continued commitment to formal neutrality as conservative because the academy regards formal neutrality as nothing more than a slogan used by the Court to mask its partisan agenda of maintaining white privilege.

In the third Part of her Article, Professor Sherry argues that the academy should not abandon the meta-principle of neutral, objective reason.4 She further maintains that the embrace of reason logically leads to the embrace of formal neutrality, because the rationality of that principle is obvious and intuitive-hence the allusion in her title to the popular self-help book that claims all we need to know as adults are the simple truths we learned in kindergarten. Accordingly, the academy should endorse rather than critique the commitment of both the Warren Court and the current Court to the principle of formal neutrality.

I share some of the concerns that animate Professor Sherry's Article, particularly her worry over the careless use of labels like "conservative" and her anxiety over many legal academics' apparent enchantment with moral skepticism. Nevertheless, I hope to show in this Comment that the particular arguments that she has marshaled to meet these concerns are ineffective because overstated. There are significant senses in which the current Court may be described as conservative. Moreover, to the extent the academy has misattributed conservatism to the Court, this misattribution is not explained by the academy's embrace of moral skepticism. Finally, I am unpersuaded that formal neutrality is obviously or intuitively the most appealing available conception of justice.


Professor Sherry claims that if one bothers to read the decisions of the Warren Court and what she calls the "current Court" in two core areas of constitutional law--equal protection and free speech-one will readily see a shared commitment to the principle of formal neutrality.5 That principle requires that each law, "on its face, treat all races with equal solicitude and all views with equal tolerance."6 As manifested in the Courts' decisions, the principle of formal neutrality denies legislatures the right to distinguish among persons on the basis of their respective races or beliefs. Thus, according to Professor Sherry, the decisions of both the Warren Court and the current Court clearly state that the Fourteenth Amendment's Equal Protection Clause prohibits legislatures from enacting laws that in any way take account of the race of those subject to the laws. …

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