In recent years, critics have frequently condemned the Supreme Court for changing too much, too quickly. The constitutional law professors quoted in Jesse Wegman’s recent NYT column are good examples.
A common retort is that this critique is simply sour grapes or hypocrisy. Liberals and progressives would love to enact sweeping constitutional change leftward and would not hesitate to do so if they controlled a majority of the Supreme Court. But denied the sweet fruit of judicial power, they hypocritically condemn its exercise for conservative ends as radical, high-handed, and illegitimate—just like Aesop’s disgruntled and envious fox. Many responses to Wegman’s column have expressed variations on this view.
This is an uncomfortable charge for liberals and progressives, but it demands to be taken seriously. On the other hand, the Court’s liberal and progressive critics have a number of plausible and weighty responses at their disposal.
First, liberals and progressives are not a monolithic group, and the membership of the group has changed over time for many reasons. The most significant for present purposes is cohort replacement. Some of today’s leading proponents of the “too much, too quickly” critique have been around long enough to have made significant public commitments that now seem inconsistent—or at least in serious tension—with the critique. But many belong to a younger generation that is developing its jurisprudential commitments in the crucible of the present moment.
Second, the charge of sour grapes, hypocrisy, or opportunism implies conscious bad faith, which the critics have not proven and is probably unprovable. Unproven does not mean wrong, of course. But a more charitable, and more realistic, explanation might point to the alchemy of motivated reasoning or, what amounts to the same thing, the suppression of cognitive dissonance. Indeed, there are even more charitable, and arguably more plausible, explanations. Jack Balkin’s 1993 paper on “ideological drift” helpfully explains:
The sincere individual who lives, as we all do, in the currents of ideological drift, does not perceive her beliefs in this way. … This individual has many possible responses to the tension produced by ideological drift: she may believe that she has changed her mind, that she gradually has come to understand more clearly what she always has believed, or that her principles and commitments have remained constant, however much they may have been misunderstood by others in changing contexts. But in no case is she an opportunist. In each case she believes in her reasons, because she reasons through her beliefs.
These thought processes should be familiar to conservatives from the well-documented transformation of originalism over the past few decades. What began as a theory of judicial restraint, formulated in response to the liberal judicial activism of the Warren Court, has evolved into a theory of “judicial engagement,” formulated as a justification for the conservative judicial activism of today. On top of this, we can add selection effects in the reception and recirculation of scholarly ideas, which are probably more common pathways for politics and ideology to influence the evolution of constitutional arguments than conscious bad faith, subterfuge, or opportunism.
All of this provides good reason to hesitate before embracing sour grapes as the best understanding of the “too much, too quickly” critique. That understanding should be taken seriously, and it is probably justified in some cases. But there are other more charitable and psychologically plausible explanations. At a minimum, sour grapes, hypocrisy, and opportunism are not the only plausible explanations for the critique, and it is worth asking whether there are other ways to make sense of it.
At the same time, the sour grapes charge raises an important and pointed question that liberal and progressive critics of the current Supreme Court who do not favor gradualism as a general matter should feel obliged to answer: Namely, why do these critics oppose sweeping constitutional change in some circumstances, while favoring it in others?
I explore these issues further in this new paper.