Harvard Civil Rights-Civil Liberties Law Review
Sometimes the public greatly opposes the decisions of the Supreme Court; sometimes the Court seems to anticipate public backlash and even to respond to it when it occurs. Should a social planner want the Court to anticipate or to respond to backlash? No abstract answer is possible; the appropriate conclusion depends on assumptions about the capacities of courts and the capacities of those who engage in backlash. This point is demonstrated through an exploration of four imaginable worlds: Olympus, the Land of the Ancients, Lochnerland, and Athens. The four worlds are based on radically different assumptions about judicial and public capacities to think well about constitutional problems. The proper analysis of backlash depends, in large part, on the prevailing theory of constitutional interpretation and on whether judges have privileged access to constitutional meaning. If judges lack such access, backlash is a healthy part of dialogue between judges and the public, and the judiciary should sometimes yield. If our world is Olympus, the argument for attention to backlash is severely weakened.
Cass R. Sunstein, "Backlash's Travels," 42 Harvard Civil Rights-Civil Liberties Law Review 435 (2007).