Hard Cases Make Good Judges

Abstract

Not every constitutional case requires recourse to first principles, and indeed, most require more subtlety than such recourse can produce. The Rehnquist Court's free speech cases provide an example of the benefits of a more nuanced and pragmatist approach in the context of a mature jurisprudence. Rigid tiers of scrutiny are simply not flexible enough to accommodate both the legitimate goals of the legislature and the need to guard against illicit attempts at pure censorship of unpopular ideas. Some form of balancing-whether identified as such or simply evident in the application of intermediate scrutiny-is necessary to avoid either too much or too little invalidation. Inevitably, Justices will disagree (as will the rest of us). But that disagreement is narrower, less bitter, and less able to force precedent in bad directions when it comes in the form of disputes over practicalities rather than principles. As the pornography cases illustrate, a careful attention to context also forces judges to confront difficult issues by rising above their own prejudices rather than sweeping them under the rug through superficial analysis and meaningless buzzwords. Perhaps other areas of the Rehnquist Court's jurisprudence could benefit from the lesson provided by these free speech cases.