Vanderbilt Law Review


Barry Friedman

First Page



Once upon a time, Enlightenment ideals prevailed across the land. Neutrality, objectivity, and reason were accepted as the firmaments of Supreme Court decisionmaking. "Americans tend[ed] to believe that 'playing fair' [meant] making everyone play by the same rules, and any deviation from this definition [was] immediately suspect."' But "then, some scholars.., abandoned the fundamental aspiration toward. . . neutrality in government." "Neutrality" came to be "considered a chimera, an illusion used by those in power to justify and perpetuate existing hierarchies." The nation was threatened with a return to pre-Enlightenment days, a "return to a world in which it matters not what is said, but who says it," "where objectivity is replaced by power."

This is the story Professor Suzanna Sherry tells about the time of the Rehnquist Court. In All the Supreme Court Really Needs to Know It Learned from the Warren Court, Professor Sherry argues that some academics have unfairly called the Rehnquist Court conservative for adhering to the very same values of neutrality and objectivity advanced by that "beacon of [liberalism]," the Warren Court. According to Professor Sherry, two groups of scholars threaten these ideals. First, there are those who would replace the decisionmaking ideal of "[flormal neutrality" with the conflicting idea of "substantive neutrality or equality of results." Second, and even worse, are some scholars, "commonly called postmodernists or social constructivists," who attack the very idea of neutrality. These scholars "have abandoned the fundamental aspiration toward.., neutrality in government,"9 which "explains the[ir] condemnation of the current Supreme Court: its adherence to principles of neutrality places it squarely among those committed to perpetuating existing hierarchies of power."

One of Professor Sherry's particular targets is affirmative action. According to Professor Sherry, the Warren Court pursued a policy of race neutrality, insisting that race play no part in governmental decisionmaking. Such neutrality was a step forward at the time, Professor Sherry explains, but it failed to eliminate all barriers to full racial equality, and so some scholars "began to demand different remedies-remedies that would transgress the command of formal neutrality" in favor of "equality of results." Although Professor Sherry does not come down squarely against affirmative action, she considers any argument for substantive neutrality to be difficult to justify because it would deviate from the widely-held norm of formal neutrality. She saves particular criticism for those who "have begun to attack the idea of neutrality altogether." What is intriguing about Professor Sherry's story is that with just one difference, it is very nearly the same story that could be told about the years of the Warren Court. Some scholars during that time, purporting to represent the mainstream of opinion, extolled the values of reason, neutrality, and objectivity, viewing them as bedrock principles of law. What Professor Sherry does not explain, however, is that these "neutral" scholars were attacking the Warren Court, not defending it. The work of the Warren Court was defended by other scholars, who felt that it was the substantive equality of results rather than the formal neutrality of rules that mattered. Moreover, some of the Warren Court defenders-like the scholars Professor Sherry criticizes today--also suggested that neutrality and adherence to principled reasoning were an illusion meant only to preserve existing power hierarchies and to subordinate minority interests.

The fact that Professor Sherry could tell very nearly the same story about today's debate as could be told about the debate over the Warren Court suggests that it would be profitable to revisit that earlier debate. Professor Herbert Wechsler's famous paper, Toward Neutral Principles in Constitutional Law, delivered in 1958, is in a sense what kicked off all the earlier debate about neutrality in Supreme Court decisionmaking. Professor Sherry states that by insisting on "neutrality" she does not mean to invoke "anything so grand as Herbert Wechsler's 'neutral principles.' " Professor Sherry's modesty aside, however, her paper and Professor Wechsler's do bear similarity.