The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There Is No Court of History
Chief Judge Pryor "write[s] separately to explain a difficult truth about the nature of the judicial role."
Yesterday, the Eleventh Circuit decided Jones v. DeSantis. This en banc decision held that Amendment 4 to the Florida Constitution did not violate the Federal Constitution. The Amendment could condition the payment of any fines as a prerequisite to the restoration of voting rights. The Court split 6-4. You may recall that there was an effort to get Judges Lagoa and Luck to recuse (See here and here). They did not recuse. Ultimately, their participation broke what have otherwise would have been a tie that affirmed the district court's permanent injunction.
Chief Judge Bill Pryor wrote the majority opinion. But here, I flag Chief Judge Pryor's separate concurrence, which Judge Lagoa joined. Pryor responds to a claim made by Judge Jordan in dissent. Judge Jordan wrote:
Our predecessor, the former Fifth Circuit, has been rightly praised for its landmark decisions on voting rights in the 1950s and 1960s. See generally Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court's Brown Decision Into a Revolution for Equality 259–77 (1981). I doubt that today's decision—which blesses Florida's neutering of Amendment 4—will be viewed as kindly by history.
Pryor forcefully rejected this claim:
I write separately to explain a difficult truth about the nature of the judicial role. Our dissenting colleagues predict that our decision will not be "viewed as kindly by history" as the voting-rights decisions of our heroic predecessors. Jordan Dissent at 189 (citing Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court's Brown Decision Into a Revolution for Equality (1981)). But the "heroism" that the Constitution demands of judges—modeled so well by our predecessors—is that of "devotion to the rule of law and basic morality." Patrick E. Higginbotham, Conceptual Rigor: A Cabin for the Rhetoric of Heroism, 59 Tex. L. Rev. 1329, 1332 (1981) (reviewing Bass, Unlikely Heroes, supra). As a distinguished colleague presciently warned decades ago, there is a "genuine risk" that later judges will "easily misunderstand" this lesson. Id. Our duty is not to reach the outcomes we think will please whoever comes to sit on the court of human history. The Constitution instead tasks us with "administering the rule of law in courts of limited jurisdiction," id. at 1343, which means that we must respect the political decisions made by the people of Florida and their officials within the bounds of our Supreme Law, regardless of whether we agree with those decisions. And in the end, as our judicial oath acknowledges, we will answer for our work to the Judge who sits outside of human history.
Yes, Pryor is referring to "the Supreme Judge of the world." No, not John Roberts. The judicial oath provides:
"I ___ do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as lll under the Constitution and laws of the United States. So help me God."
In Trump v. Hawaii, Chief Justice Roberts purported to overrule Kormematsu in the "court of history."
The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—"has no place in law under the Constitution." 323 U. S., at 248 (Jackson, J., dissenting).
This line was pathetic virtue signaling. The Supreme Court cannot overrule a case in an imaginary court, where the question isn't even presented. In general, when I hear the phrase "court of history" or "arc of history," I simply presume that a liberal is trying to shame a conservative into reaching a liberal result. These phrases no longer have any meaning for me. Alas, the Chief bought into this mythology.
Chief Justice Roberts could learn a lesson from Chief Judge Pryor. Regrettably, Pryor is still on the not-so-short list, and not on the Supreme Court.
