Date01 August 2023
AuthorRice, Daniel B.


American judges decry past moral lapses as intolerable. They paint their predecessors' worst mistakes as tragedies that must never be allowed to happen again. When given the chance to avoid new injustices, however, judges increasingly flaunt their moral indifference. They insist that legal fidelity requires them to ignore whether their own rulings will be remembered as monstrous. But this cavalier outlook--for all its devotion to the past--is remarkably ahistorical. Feats of legal craft have never survived cultural repudiation. When precedents become morally shameful, the quality of their reasoning ceases to matter. The opinions' authors are remembered not for the technical virtues they displayed, but for the evils they enabled.

This Article explains why courts should contemplate--and heed--the moral judgments of coming generations. Doing so is not an arbitrary projection of personal fancy; it is a corollary of the shared practice of retrospective condemnation. Tenets of cultural morality often achieve judicial recognition, and those truisms inevitably shape how courts perceive their interpretive responsibilities. Methodologies that ignore the outlines of future regret thus threaten to saddle the legal system with precedents that time will construe as lawless.

Despite the formalizing pressures of modern legal discourse, a countertrend has begun to emerge: that of judicial moral prophecy. This growing practice should be viewed as an essential adjunct to the rule of law, rather than a sad diversion from it. Factors that will ultimately eclipse logical precision can and should inform conceptions of judicial duty in the present. And past patterns of failure offer insights for transcending current cultural assumptions. In the end, the legal system suffers when judges inflict tragic harms for the sake of analytical purity. We should stop pretending that legal fidelity blinds us to this recurring lesson.

  1. TIME, REASONS, AND RESULTS II. FUTURE ETHOS: A HISTORY A. Implicit Predictions B. Explicit Predictions 1. Courts 2. Congress III. BENEFITS A. Averting Tragedies B. Reshaping Legal Dialogue C. Avoiding the Bigotry Trap IV. OBJECTIONS A. Rule of Law B. Temporal Indeterminacy C. Pragmatic Objections 1. Predictive Challenges 2. Institutional Competence 3. Liberal Bias 4. Moral Emptiness 5. Opportunism V. PRACTICING MORAL PROPHECY CONCLUSION INTRODUCTION

    The modern Supreme Court, it seems, cares little about how society will judge its work. Even in high-salience cases, the Justices increasingly describe their responsibilities as flowing solely from a static past. Culturally adaptive firearm regulations are received with scorn; (1) life-shaping liberty interests cannot survive their encounter with "history and tradition." (2) Naturally, then, the Court has disclaimed any authority to anticipate the outrage of later audiences. (3) This stance draws support from influential lower-court judges who have ridiculed the supposed relevance of future morality. (4) Amidst it all, academic originalists continue to portray judicial review as largely an exercise in historical fidelity. (5) Institutional support for this past-centered paradigm has never been greater.

    Far less clear is whether the landmark outcomes of a backward-facing jurisprudence will enjoy lasting acceptance. Time and again, earlier perceptions of legal legitimacy have been warped by the power of cultural memory. Years on, logic and technique tend to matter far less than whether a decision comports with dominant substantive values. (6) American lawyers now celebrate weakly reasoned precedents that helped build a just society, (7) and they lament examples of legal craft that our nation can no longer abide. (8) The best-laid doctrines will be repudiated--and their authors vilified--if they prove to have spectacularly misjudged the future.

    To date, formalist methodologies have failed to account for this recurring dynamic. But numerous scholars have ventured to predict the shape of societal regret. Professor Justin Driver, for example, has insisted that the use of corporal punishment in public schools will eventually be recalled with "shame and embarrassment." (9) Similar claims have been made about practices as diverse as mass incarceration, (10) the death penalty, (11) abortion, (12) and the institution of marriage. (13) Time will vindicate only some of these varied predictions. Yet their underlying impulse seems incontrovertible. There is no reason to believe that today's generation, uniquely, will escape history's condemnation. At least some recent practices will almost certainly leave posterity aghast at our collective moral blindness.

    American legal culture encourages just these sorts of retrospective judgments. It is common to speak of an "anticanon" of past decisions that stand for propositions our society has "collectively renounced." (14) Judges of all ideological stripes frequently describe former practices as not just unlawful, but shameful and benighted. (15) The prevalence of this distinction can serve a crucial educative function. The premise of maintaining an anticanon--and denouncing historical tragedies--is that today's actors should learn from these grave missteps. Pondering past patterns of failure can help public officials transcend their limited moral perspectives as they seek to avoid new injustices. Several scholars have urged just this, calling for greater awareness of how present-day practices will be viewed in the eyes of later generations. (16)

    Yet advocates of this stance have found limited success in today's environment. Their warnings have been little match for the conventional view that judges have no business speculating about zeitgeists to come. Even scholars unallied with the conservative legal movement have discouraged judges from channeling future morality. (17) Most notably, Professor Jack Balkin--who fully appreciates how normative shifts can engender perceived tragedies (18)--counsels judges to live primarily in the present. Rather than try to "curry favor" with an unknown future, Balkin advises, judges should simply operate "scrupulously and professionally." (19) It is not their job to consider whether posterity will rue their opinions, because "the future belongs to the future"--not to us. (20) What matters today are the technical virtues of "[c]raft and judiciousness." (21)

    Courts should not neglect basic rule-of-law values in deciding culturally salient cases, of course. But the formalizing pressures of modern legal discourse have reinforced an equally misguided tendency. Even as they denounce past rulings as wicked and heartless, many judges refuse to imagine how their strict devotion to craft could one day be viewed in the same light. They draw legal lessons from past moral lapses while shutting off conversations about their own normative legacies. In the end, though, courts are not graded on their analytical neutrality or their mastery of grammatical canons. What matters is whether they advanced--or impaired--substantive values deemed critical to a just society. (22) Historical formalism thus tends to exalt short-term legal legitimacy at the expense of long-term moral legitimacy. (23) If today's understandings of history must trump all else, judges lose their discretion to guard against moral disaster.

    We are fortunate that some actors have taken the moral long view at key moments. Dissenting in Plessy v. Ferguson, Justice Harlan predicted that the majority's sanctioning of racial apartheid would, "in time, prove to be quite as pernicious as ... the Dred Scott case." (24) Harlan deftly foresaw how a routine application of existing doctrine would come to be viewed as callous and indefensible. (25) His lonely effort helps assure us that judicial tragedies are not inevitable--that heeding intergenerational ethos can curb today's toleration of evil. Similar foresight played out in Congress following the Court's decision in Brown v. Board of Education. (26) Signatories of the so-called Southern Manifesto excoriated the Court's rather lax legal reasoning. (27) One senator cut through these points, decrying the Manifesto as "so shameful that it will forever be a dark page in American history." (28) The less lawyerly perspective triumphed in the end (as it often does).

    This Article explains why judges should contemplate--and act upon--the moral revulsion of coming generations. I call this practice judicial moral prophecy. Far from a lawless projection of personal fancy, predictions like Harlan's are a corollary of the accepted practice of retrospective condemnation. It would be nonsensical for judges to label past phenomena "shameful," (29) "ignominious," (30) "grotesque," (31) "morally repugnant," (32) and "a disgrace," (33) yet scold colleagues who wish to avoid perpetrating further evils. Appealing to the future's sense of shame can help judges escape doctrinal structures that would dishonor their institutions and inflict unjust suffering. Reasoning openly about future ethos also enables direct acknowledgement of a case's moral stakes, rather than resting solely on mundane analysis that will soon be forgotten. (34) And normalizing this future-oriented practice could help advocates draw guidance from past achievements without being accused of animus or disrespect toward those holding traditional views. (35)

    Given the advantages of extending one's moral gaze, it should not be surprising that many judges have followed in Justice Harlan's footsteps. This Article is the first to document that growing practice. In a variety of circumstances--covering the areas of race, abortion, voting rights, climate change, LGBTQ+ rights, criminal procedure, and tribal sovereignty--judges have voiced their desire to avoid rulings that later generations would deplore. (36) Their opinions embody the paradoxical belief that intervening in an ongoing cultural conflict can enhance judicial legitimacy, at least in the long run...

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