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42 Harv. C.R.-C.L. L. Rev. 435 (2007)
Backlash's Travels

handle is hein.journals/hcrcl42 and id is 439 raw text is: Backlash's Travels Cass R. Sunstein* ABSTRACT 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 so- cial planner want the Court to anticipate or to respond to back- lash? No abstract answer is possible; the appropriate conclu- sion 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 some- times yield. If our world is Olympus, the argument for attention to backlash is severely weakened. Let us define public backlash, in the context of constitutional law, in the following way: Intense and sustained public disapproval of a judi- cial ruling, accompanied by aggressive steps to resist that ruling and to remove its legal force. It is easy to imagine cases in which a controversial judicial ruling is likely to produce public backlash. Perhaps the ruling involves property rights, presidential power in connection with the war on terror, the use of the words under God in the Pledge of Allegiance, the placement of the Ten Commandments on public property, or same-sex marriage. Let us simply stipulate that if the Court rules in a certain way in such cases, public outrage could significantly affect national politics and un- dermine the very cause that the advocates of the ruling are attempting to promote. Perhaps the ruling would prove futile or counterproductive, or produce overall social harm. Perhaps the ruling would set in motion forces * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago.

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