Determining Notoriety in Supreme Court Decisions

In a symposium proceeding from the assumption that some of the decisions rendered by the Supreme Court of the United States have been notorious mistakes, one would hope to find some collective understanding about governing principles. If, as I suspect, there will be little agreement about which decisions (and accompanying opinions) qualify as notorious, perhaps there will be greater agreement about evaluative criteria. For example, even if one might not expect to find consensus about whether Roe v. Wade1 was a notorious mistake, one might at least anticipate a shared sense, among those searching for such mistakes, of how the search might proceed. But what might that shared sense include? And can we fashion any durable criteria for determining notoriety? This essay investigates those questions. 

The essay proceeds in three stages. First, I identify two cases out of a handful that would be on many commentators’ lists of notorious mistakes, and at the same time identify some largely implicit criteria that have typically affected the analysis of judicial opinions in America. I then suggest that those criteria can serve to determine notoriety, but that they bear a particular relationship to one another, one that may not be well understood. Understanding that relationship, I argue, is critical to the process of assigning notoriety to Supreme Court decisions. Next I argue that because the criteria can serve to reinforce one another and also to oppose one another, evaluators of Supreme Court decisions are required to prioritize among them, or even choose some over others. The need to prioritize among multiple criteria that point in different directions makes the evaluative process highly dependent on the weight assigned to a particular criterion. The process of assigning notoriety thus runs the risk of collapsing into subjectivity because individual evaluators might simply be assigning greater or lesser weight to one criterion or another. 

The third stage of the essay seeks to restore some integrity to the criteria for determining notoriety. In this stage I use a decision rarely placed on anyone’s list of mistakes, United States v. Carolene Products Co., 2 to illustrate that the choice to label a particular decision notorious amounts to a choice to treat criteria that are often self-opposing as self-reinforcing. The notorious decision ends up being one that is characterized as transcendentally mistaken. Not only is it on the “wrong” side of history, it gets no discount for the historical context in which it was decided.3