The Volokh Conspiracy
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Justice Sotomayor's dissent in Whole Woman's Health v. Jackson concludes with this passage:
In its finest moments, this Court has ensured that constitutional rights "can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . . whether attempted 'ingeniously or ingenuously.' " Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). Today's fractured Court evinces no such courage.
Justice Sotomayor does not explain why the Cooper Court was courageous. Nor does she explain why the Jackson Court was not courageous. She assumes that the reader will find these conclusions self-evident. I disagree. For some time, I have been working on an essay about judicial courage for the Texas Review of Law & Politics. Here, I will give a preview of my work.
I don't think judicial courage can be defined with regard to any particular legal ruling. Deciding a case in favor of X is not necessarily courageous. Rather, the essence of judicial courage is casting a vote, knowing that it will be unpopular. Unpopular with your colleagues. Unpopular with judges on other courts. Unpopular with politicians. Unpopular with the people. Unpopular with academics. And so on.
Cooper v. Aaron, for all its flaws, was a courageous decision. At the time, "Impeach Earl Warren" billboards littered the South. The Southern Manifesto advocated resistance of the Warren Court. Indeed, many federal judges who presided over desegregation cases faced regular death threats, and required security details. The nine Justices who ruled in Cooper knew their decision would be extremely unpopular throughout the country. All nine signatures were affixed to the opinion to demonstrate solidarity. They also likely knew that the decision would be resisted, but issued it anyway.
Today, we live in a very different world. The greatest threat to judicial independence comes not from odious segregationists, but from progressive elites. I am grateful the prospects of Court-Packing have faded for now, but it has gained a currency on the left that I never fathomed was possible. And make no mistake. The specter of Court-Packing is a transparent effort to pressure the Justices to reach results progressives favor. Senator Whitehouse's amicus brief made this threat explicitly.
Today, judicial courage is casting a vote in spite of these forces. Today, judicial courage is saying, "I don't care what you will do to my Court. I am going to follow the law." Today, judicial courage is saying, "Let the Constitution be neutral on this issue, and return it to the democratic process." Today, judicial courage is saying, "I will not distort a century of federal courts jurisprudence in order to create yet another epicycle for abortion." Today, judicial courage is saying, "I am willing to be denied entry to elite circles, so be it." Today, there is nothing courageous about ruling in favor of abortion rights. Chief Justice Roberts was feted by progressives elites for his skeletal dissent, as were Justices Kennedy, O'Connor, and Souter, before him. Today, courage is casting a vote, knowing that progressive elites will object.
Justice Sotomayor gets judicial courage entirely backwards. And Casey got judicial courage entirely backwards. The ability to rule "under fire" is precisely the reason why federal judges have life-tenure. Standing firm means ignoring the political consequences of a ruling. I am grateful the Jackson Court exhibited fortitude, come what may.