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Aaron Tang

Publication Date

1-22-2023

Abstract

May the Supreme Court consider consequences when it decides the hard cases that divide us? The conventional wisdom is that it may not. Scholars have argued, for example, that consequentialism is a paradigmatic “anti-modal” form of reasoning at the Court. And the Court itself has declared that “consequences cannot change our understanding of the law.”

This Article presents evidence of a possible shift in the standard account. Although many kinds of consequentialist arguments remain forbidden, such as naked judicial efforts to maximize social utility, a particular form of consequentialism is now surprisingly common when the Supreme Court confronts hard cases. In the past few years, the Court has issued no fewer than a dozen opinions in which it expressly identifies the potential adverse consequences of its decision, predicts how losing groups may respond, and rules in a manner that ensures those losing groups will have meaningful options for avoiding their consequences after defeat. What is more, this consequentialist turn is transsubstantive, occurring in constitutional, statutory, and administrative law cases alike.

After canvassing these rulings, this Article invites debate on whether consequentialist reasoning truly ought to be categorically forbidden in the Supreme Court’s express decision-making process. Some may have the instinct that even the slightest peek through to the consequences of the Court’s decisions is impermissible, a threat to the distinctive methods and professional practices that differentiate law from raw politics. But open attention to harmful consequences—and the ways in which losing groups might avoid them—can serve salutary aims, too. In particular, a genuine concern for the consequences that its rulings threaten to inflict might help the Supreme Court make meaningful inroads against the mounting public perception that the Court is callous, elitist, and out of touch.

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