As Orin Kerr notes, Time magazine recently asked a group of prominent law professors to name their choices for the best and and worst Supreme Court decisions since 1960. I agree with several of Orin’s observations on the Time symposium. He is right that it is striking that most of the professors defended their picks purely based on consequential rather than interpretive considerations. He is also right to note that all focused on constitutional rather than statutory or regulatory decisions.

I would add that, by my count, only one of the sixteen professors whose responses were printed by Time could be considered a conservative or libertarian (Sai Prakash of the University of Virginia). The other fifteen are all on the left (though some are much further to the left than others). The range of selections might well have been different had Time’s panel been more ideologically balanced.

I offered some of my own views on how to choose the best Supreme Court decisions here. As I see it, Supreme Court decisions must be judged on a combination of consequentialist and technical legal criteria. The best rulings should score high on both considerations, while the worst feature both terrible reasoning and terrible consequences. A ruling that is based on excellent legal reasoning but has little real-world effect, or even has a negative effect, is not worthy of being considered one of the Court’s best decisions. The same goes for a beneficial ruling that nonetheless undermines important interpretive principles.

Furthermore, a decision is more likely to be a good one if it can be justified from the standpoint of multiple different plausible approaches to constitutional interpretation, rather than just one. Conversely, it is more likely to be bad if multiple plausible approaches condemn it. Given the limitations of constitutional theory (which is far from being an exact science), we should be less confident about the rightness or wrongness of a decision if there are strong arguments on both sides of the question.

Why not judge Supreme Court decisions on purely technical legal criteria? One reason is that the Court’s job isn’t purely technical. Like the legislative and executive branches, it also has the objective of maintaining and improving our system of government and the values it is supposed to promote. Among other things, it is intended to be an effective check on the powers of the other branches of government, curbing their strong tendency to overextend their powers and undermine liberty.

Most, if not all, of the time, the Court can best fulfill its functions by following legally correct methodology, rather than by directly focusing on consequentialist considerations. But the choice of interpretive methodology itself cannot be a value neutral exercise, and cannot ignore consequences. For reasons I discussed more fully here, neither originalism nor living constitution can ultimately be justified except by reference to values external to the theories themselves:

Some legal theorists argue that evaluating constitutional theories based on their effectiveness in promoting specific values is inherently illegitimate. The problem with this view is that it divorces constitutional theory from the normative justification for obeying the Constitution (or any legal rule) in the first place. The fact that some people wrote down a set of rules 150 or 200 years ago does not in and of itself create a moral obligation for us to obey them today (or even for their contemporaries to have done so). Neither the Constitution nor any other legal text justifies its own enforcement. If we should obey nonetheless, it must be because of some value or set of values external to the text itself. And the nature of that value is likely to influence the normative decision about what interpretive methodologies should be used to determine the implications of the text for particular cases.
While we may not want judges to rely on their own personal values in applying whatever turns out to be the right theory of constitutional interpretation, the decision of what interpretive theory to use in the first place is not and cannot be a value-neutral enterprise.

I responded to some criticisms of my position on this issue here. Some argue that deference to the democratic process offers a value-neutral methodology of constitutional interpretation that we should all embrace. But a duty to obey and enforce even democratically enacted laws cannot be self-justifying: partly because they usually are not the result of genuine consent by the governed, and partly because they cannot be democratic all the way down, and therefore require some non-democratic rationale to justify an obligation to obey them. Thus, constitutional theories that emphasize respect for democracy are no more value-neutral than those that emphasize other values, such as liberty or public welfare.

How, then, would I answer the question posed by Time?

I think there are several good candidates for the best decision, including United States v. Lopez (selected by Prof. Prakash). But, like several of the symposium participants, I ultimately lean towards Loving v. Virginia (1967), which struck down laws banning interracial marriage. The reasoning is sound (though not as explicitly originalist as I would prefer); the Court was surely right to conclude that anti-miscegenation laws violate the Fourteenth Amendment in large part because their purpose was to promote white supremacy. And the injustice Loving removed was a severe one that might have persisted for some time, but for the Court’s ruling – at least in the deep South.

More controversially, I would choose Gonzales v. Raich (2005), as the worst post-1960 decision. Raich ruled that Congress’ power to regulate interstate commerce allows it to criminalize the possession of medical marijuana that had never been sold in any market or ever crossed state lines. The majority’s reasoning makes a hash of the text and structure of the Constitution. The consequential effect of the decision gravely undermines efforts to enforce constitutional limits on federal power, and helps perpetuate some of the worst injustices of the War on Drugs.

I was tempted to pick Kelo v. City of New London (2005) as the worst post-1960 ruling. It too has highly pernicious consequences, and is based on badly flawed reasoning, some of whose weaknesses have even been admitted by the author of the majority opinion himself. However, unlike Raich (which badly undermined the Court’s then-most recent Commerce Clause precedents), the result in Kelo was consistent with longstanding (albeit, flawed) precedent, and its negative real-world impact was partly mitigated by the massive political and jurisprudential backlash it generated.

UPDATE: I have made a few stylistic changes to this post, to improve clarity.