Over on the Legal Workshop, Gerald Ratner Distinguished Service Professor of Law David Strauss has posted "Modernization and Lawlessness: A Reply to Professor Mitchell" as a response to Jonathan F. Mitchell's critique of Strauss' article "The Modernizing Mission of Judicial Review."An excerpt is reposted below, and you can read the full article here.
Professor Mitchell’s characteristically thoughtful and incisive comment makes many important points.1 He is right in saying that Atkins v Virginia2 and Thompson v Oklahoma3 fit the modernization model better than Roper v Simmons4 or Kennedy v Louisiana.5 I also agree with Professor Mitchell that a modernization approach gives political actors an incentive to behave strategically in (among others) the way he suggests-to try artificially to create or resist a “trend.” And it is hard to argue with his point that the Court’s initial treatment of the so-called partial birth abortion issue, in Stenberg v Carhart,6 did not seem to reflect sensitivity to popular opinion. More generally, the Court certainly has not been consistent in applying a modernization approach, even in the areas I mention. Modernization remains mostly an unselfconscious approach, I believe, and so it is not surprising that there are many cases that cannot be squared with it.
Professor Mitchell’s main argument, though, is that in many of its capital punishment and substantive due process decisions, the Court is not responding to trends in public opinion but is instead just indulging its own ideological preferences or policy views. This argument, I think, raises some complicated issues. It may be worth distinguishing two questions. The first is: to what extent is the Court ruling according to the law, as opposed to ruling simply according to the justices’ views? In controversial cases, that will often be quite a difficult question to answer, for both empirical and conceptual reasons. The second question is: to whatever extent the justices are ruling according to the law (and not their policy views), where are they getting the law from? Are they getting it from the Framers’ understandings, or precedent, or tradition, or something else?