Professor Sherry's Article has three parts. The first is doctrinal and undertakes to demonstrate that the above quoted wisdom is not only false, but patently so. It is apparent, this Part argues, that the current Court has not drifted toward the "right," but has steadfastly held to the principle of justice that animated the Warren Court. This is the principle of "formal neutrality," which generally holds that government may never distinguish among its citizens on the basis of race, creed, or color.
Professor Sherry's second project is to explain why constitutional scholars have failed to recognize this obvious consistency. Her ultimate explanation is somewhat involved. In outline it proceeds as follows. It is the academy, not the Court, that has changed. In particular, the modern academy has rejected neutrality. Moreover, it has rejected neutrality not only in its incarnation as the substantive moral principle of formal neutrality, but also in its incarnation as the epistemological meta-principle that substantive moral principles can be justified by appeal to neutral, objective reasons. The academy's critique of the current Court as "conservative" expresses this twin rejection of formal neutrality and of neutrality as objectivity. The academy condemns the Court's continued commitment to formal neutrality as conservative because the academy regards formal neutrality as nothing more than a slogan used by the Court to mask its partisan agenda of maintaining white privilege.
John C.P. Goldberg,
On the Merits: A Response to Professor Sherry,
50 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol50/iss2/13