The Volokh Conspiracy
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Time to Retire the Notion of "Judicial Courage"?
A reply to Josh Blackman.
In a recent post, Justice Sotomayor Gets Judicial "Courage" Backwards, my friend and co-blogger Josh Blackman argues that the truly courageous vote for a conservative Justice is to vote in ways that upset the left:
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.
I have a different proposal: Can we simply retire the notion of "judicial courage"? Over a decade ago, I offered this Ambrose Bierce-inspired definition:
The Definition of a "Courageous" Judicial Decision: A judicial decision that stretches the law but nicely matches the observer's policy preferences.
A decade later, that still seems to accurately describe most uses of the term. I mean, I think we get it: When you really want a judge to rule a certain way, or (if they have already ruled) you want to celebrate the judge doing so, it's tempting to clothe that decision in the garb of "courage." Courage, the dictionary tells us, is strength in the face of fear or grief. Describing a judicial decision as "courageous" implies that the judge is a hero for ruling the way you want, and that the only reason they might rule the way you don't want is weakness or fear. This is an easy argument to make within a political culture. It's easy to craft an imagined audience that the Justice is claimed to be afraid of, such that rejecting that imaged audience's view is courageous. But it seems to me that it often resolves to the notion that the courageous thing is to do whatever the speaker wants.
This doesn't mean there are no legal opinions that show courage. In some cases, a judge may feel that the law requires a particular answer that the judge personally opposes and that the judge simultaneously knows will lead to particularly unpleasant personal consequences. This can come up, for example, when a lower-court judge spikes his or her own chance at promotion by handing down a ruling that the judge doesn't like and that significantly hurts their chance at being elevated to a higher court. Consider Judge Jeffrey Sutton's opinion for the 6th Circuit upholding the Affordable Care Act. Given the incredibly successful efforts to make the contrary view the only acceptable GOP view, Sutton's excellent opinion from the standard of traditional conservative judging also ensured he could not appear on a future GOP short list.
But those situations are relatively rare. And as it happens, they're not the kinds of cases that tend to get labeled "courageous" anyway. So on the whole, I think it's probably better to retire the phrase, or at least to be pretty skeptical when it is used.
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To be “courageous”, there has to be some element of risk. Life, health, loss of property, loss of job, something tangible.
No supreme court justice or group of justices has ever risked anything by making any decision or issuing any opinion. Frowning op-eds or brutal blog/twitter comments are not “risk”.
What exactly bad was going to happen to the court in Cooper v. Aaron?
When one of the Senate’s most powerful members says that Supreme Court justices who rule a certain way will “reap the whirlwind”, I don’t think we should be obliged to wait for a specific threat before concluding that some threat was meant.
Wasn’t “reap the whirlwind” what Kavanaugh threatened the senators with at the end of his sob? Not the other way around as you have it. And it looks like he’s going to get his chance too!
No. https://wskg.org/news/supreme-court-weighs-abortion-case-schumer-remarks-draw-rebuke-from-roberts/
Yep. They both said nearly the same thing. Foolish and dangerous on both their parts
No, one expressed it as a fear of consequences for the whole nation. The other expressed it as a prediction of personal consequences. As the president might say, that’s a big fucking difference.
‘Then he turned directly to Democratic senators on the committee. “You sowed the wind,” he said, and “the country will reap the whirlwind.”’
Sorry, counselor. I’m not going to suspend my understanding of the English language to accommodate your take on Kavanaugh. To be honest it rather sounds like he’s swearing vengeance on the whole of the United States. But that would be hyperbole. We can just be fair and agree he meant the Democratic population of the United States.
Kavanaugh: “You sowed the wind. For decades to come, I fear the country will reap the whirlwind.”
Schumer: “You have unleashed the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
You dropped a few key words there, distorting the apparent subject of the “will reap the whirlwind” clause. Try harder in the future.
Sorry, counselor. I’m not going to suspend my understanding of the English language
Your understanding of the English language appears to be on a par with the average baboon’s understanding of quantum mechanics.
Actually he said, “What goes around comes around.” A bit different in tone to reaping the whirlwind that implies a disproportionate respnse.
Are you concerning about threats now, clinger?
Why was it not surprising that both your links are to the Washington Post.
I blame my education and preference for reason.
Your elite education made you an idiot and a vile traitor to this country, you vile elitist scumbag. You are going to camp, in 2025. This failed elite should be prosecuted as traitors. You cannot even read the simple language of Article I Section 1 you vile scumbag traitor. You are in insurrection against the constitution. The penalty should be changed from 10 years to the death penalty. Then we eradicate all the internal traitors and servants of the Chinese Commie Party enemy.
Thee only person who’s shown a lick of courage in both parties this year is Liz Chaney
I don’t know if she is the *only*. But, I have to admit…her name is the only one that comes immediately to mind. 🙂
…I will add that last year (ie, 2021), before the attempted insurrection, there were several Republican officials who showed GREAT courage, in terms of not whoring their integrity and in terms of not letting Trump steal the election. And another handful who had the courage and integrity to call out the retarded (sorry–trying to come up with a more politically-correct term, and am failing) vote audits and “investigations” that wackos were floating.
Yet more usage of “courage” to mean “decisions I agree with”. Are you trying to make Kerr’s point for him?
This Michael P is a clever one. You would be correct if I were to subscribe wholly to Professor Kerr’s definition. But I don’t entirely. So she fits my definition (the bravery and/or strength to face something that could be dangerous to oneself)
It doesn’t matter whether you agree with Kerr’s definition, but with Cheney’s actions.
Michael P, I must say it has been a pleasure sparring with you throughout this blog today. You sir definitely have a full reserve of faculty. Not so tainted with lunacy as far as I can tell. A rarity these days
before the attempted insurrection
My days of not taking you seriously are definitely coming to a middle.
Cheney needs to register as a Democrat. She is a vile traitor to this country.
Sounds pretty courageous to me.
“some threat was meant”
Its just political rhetoric. No threat.
Only an infant would be afraid of Chuck Schumer after all.
Remember when Senate Dems sent a direct threat to the Court? Probably not because the media never covered it, but there you go.
Also maybe the ghost of Scalia can tell you what happens when you try to exercise judicial courage….
Dude, sometimes old fat conservatives just die.
Just imagine his fevered conspiracy theories about RGB dying…JUST in time to allow for Whore Mitch to ram through an ultra-conservative replacement. Or do conspiracies only flow in one direction? (That’s rhetorical…of course they don’t apply when liberals are the “victims.”)
Sometimes old fat conservatives just die. Sadly, sometimes lean and fit *very* old liberals just die.
. . . or do they? [Cue ominous music]
We need to know the pillow placement on RGB’s deathbed!!!
Judicial courage isn’t just a thing for Justices.
Consider Judge Jeffrey Sutton’s opinion for the 6th Circuit upholding the Affordable Care Act. Given the incredibly successful efforts to make the contrary view the only acceptable GOP view, Sutton’s excellent opinion from the standard of traditional conservative judging also ensured he could not appear on a future GOP short list.
Really confirmed his thesis there, at least in regards to himself: “Describing a judicial decision as “courageous” implies that the judge is a hero for ruling the way you want, and that the only reason they might rule the way you don’t want is weakness or fear.”
Kerr cites as an example of judicial courage a decision he agreed with. Ironically, Blackman’s example of judicial courage was a decision he thought horribly wrong.
So, what we’re looking at here is at least partly projection.
Your logic is faulty. Prof. Kerr lays out why this decision is courageous, and his argument does not rely on the decisions merits or whether he aligns with it.
Courage shouldn’t always align with approval of the observer, but that doesn’t mean it can never do so.
I think they are both wrong, Sarcastr0. Bob from Ohio pointed out, correctly, that none of the judges cited had any skin in the game. There was nothing courageous about their decision. He is correct about this.
Do you assume Sutton had no ambition for SCOTUS?
It’s really selling courage short to insist that the only stakes be corporal.
I assume nothing. ‘No skin in the game’ and ‘no sanction, therefore no courage’ are appropriate tests. Else, how can you really assess courage? That is a qualitative judgment.
he could not appear on a future GOP short list seems a huge sanction to me. How is it not to you?
Professor Kerr opines that Sutton was on a SCoTUS short list. Perhaps. But that his opinion, not a fact. To your point, being removed from a short list doesn’t count as sanction, even if true. He still has his job and has lost nothing.
Come on, dude. First, your skepticism about something Prof. Kerr would know and you would not is a bit much. (FWIW, as a baby liberal in law school I heard of him as SCOTUS timbre).
But more importantly, being denied such a lofty job when you otherwise would have gotten it is *absolutely* a nontrivial injury.
Anyone ambitious (and some that aren’t) will tell you that professional momentum matters as much as professional position.
Kerr’s position is that we should retire the term because in practice people only use it to refer to cases where the judge’s ruling aligns with the approval of the observer. (Largely true!) And this is in a response to a Blackman post where he literally described as courageous a decision he thought horribly wrong.
Which is at least worth noting.
Did you read the comment you are replying to?
Prof. Kerr laid out a non-ideological argument for his example.
Blackman’s courage paradigm is *based on* ideology.
Your reductive attempt to conflate the two requires you to ignore the very different logics both employ.
You are entirely backwards.
Kerr’s example was Sutton’s opinion and he advanced a plausible reason why it was “courageous” – ie that he might be nixing promotion prospects by alienating conservatives. Fine. But he does this just four sentences after saying :
“It’s easy to craft an imagined audience that the Justice is claimed to be afraid of, such that rejecting that imaged audience’s view is courageous.”
In other words he gets to reject other people’s imagined audiences as self serving inventions, while his own imagined audience is just peachy. That you say that he offers a non-ideological argument is no more than a statement that you approve of his imagination as to a potentially threatening audience. But “conservatives won’t like it” is no more non-ideological than “liberals won’t like it” or “the media won’t like it.” It’s just that these imagined audiences do not fit snugly into your confirmation bias.
Meanwhile you walk straight past the glaringly obvious point that Kerr’s example confirms Kerr’s bias – that Sutton’s opinion was ace. While Blackman’s example was directly contrary to Blackman’s bias – he thinks Cooper v Aaron is crap but courageous.
If Kerr’s piece had simply been a lofty dismissal of the use of “judicial courage” it would be a wee bit supercilious, but OK. The fact that he tacks on his on example of judicial courage which displays EXACTLY the same features as he criticises in others –
(a) a selected imagined audience that justifies the fear that requires the courage, and
(b) a decision that he absolutely loves
shos that the man is totally blind to his own prejudices. As are you.
Sutton’s opinion being good or bad was *explicitly* not part of Prof. Kerr’s analysis. You are mistaking clear dicta for the legal rule.
Also not part of Prof. Kerr’s analysis – anything about an audience.
Blackman, otoh, believes that since the legal world is liberal, conservatives are brave basically all the time.
Because Blackman’s real example is, of course, current opinions he wants the SCOTUS to have.
Do you think the same agenda is true of Prof. Kerr?
You should go back and read the OP again, from the top.
You should go back and read the OP again, from the top.
Right back at ya.
Sutton’s opinion being good or bad was *explicitly* not part of Prof. Kerr’s analysis.
Interesting. I read “Sutton’s excellent opinion” – where did you Kerr *explicitly* saying that the goodness or badness of the opinion was not part of his analysis ? A quote of Kerr *explictly* stating this would bolster your argument.
But even if you meant that Kerr does not explicitly state the contrary – would you expect him to have done so ? Not even Blackman does that – you infer it.
The explicit statement of the Kerr courage rule specifies “that the judge simultaneously knows will lead to particularly unpleasant personal consequences”
Also not part of Prof. Kerr’s analysis – anything about an audience.
Crap. He provides a particular example of the application of his rule, in which an unstated but nevertheless clearly inferred particular audience – those who might have a hand in promoting him to a higher court – is the causal agent in generating those unpleasant personal consequences.
Thus where the unpleasant consequences result from an unforgiving audience – which will be almost any time there are unpleasant consequences, other than when he’s recused anyway – the supposed audience is directly within Kerr’s analysis.
Which is even more obvious from his own reference to “imagined audience” just four sentences earlier.
Prof Kerr,
Thank you for injecting a bit of common sense into what has devolved into the “Blackman Conspiracy”.
Oh, and I still owe you that beer from a long time ago.
Yes. How wonderful to read a thoughtful, rational, intelligent, non-partisan post.
We need more Orin Kerr, less South Texas sycophant to whomever he thinks might help his career.
It’s okay to be friends with a really bad writer with bad political opinions.
VC really going downhill with Hackman taking over.
The Volokh Conspiracy is where it wants to be. And deserves to be. And is destined to remain. An occasional visit by Prof. Kerr seems unlikely to change any of that.
Scott Alexander wrote a somewhat-related blog post here:
https://SlateStarCodex.com/2013/05/18/against-bravery-debates/
We could also do without the habit of expressing disapproval of acts of violence by calling them cowardly. It is often untrue and rarely relevant. For untrue, think of the 9/11 terrorists being called cowards for watching their death approaching at 500 miles per hour. For lack of relevance, the quote attributed to George Patton will serve: “No dumb bastard ever won a war by going out and dying for his country. He won it by making some other dumb bastard die for his country.”
Bill Maher lost his (then-)show by pointing out that the 9/11 terrorists were not cowards. They were shitty, awful, horrific animals who hopefully will burn in hell for all eternity. But his bosses–insisting on calling them “cowards” . . . and punishing those who pointed out that the terrorists’ actions were not in line with the meaning of the word; well, not democracy’s finest hour, nor a shining example of free speech.
I disagree with Bill Maher and John F. Carr on terrorists that commit suicide attacks. I don’t see it as brave if they truly believed that eternity in paradise would be their reward for becoming martyrs for their faith. It could only be brave in the sense that they had to overcome doubt that their beliefs were really true. That death isn’t just an end of existence, and that their god wanted them to kill ‘infidels’.
True courage, when faced with a more powerful political enemy, is to resist what you see as injustice with peace – to do the hard work of building a case for the justice of your cause among potential allies. If violence is justified only in the immediate need of self-defense, then using violence because one doesn’t have sufficient support to accomplish political goals peacefully is cowardly, in my view. You want to see courage, look no further than this.
And thus no martyrs are ever brave.
Jason,
I’d argue that just because someone is clearly not a coward does not necessarily mean that he/she is affirmatively “brave.” Lots and lots of middle ground b/t those two extremes.
I agree. I think calling the terrorists cowards was more of a knee jerk insult rather than a reasonable assumption based on the particular act. I’m not saying that we should assume they were particularly brave either. The only potential risk from their perspective was the risk of screwing it up somehow. But I imagine they figured the effort itself would get them to paradise.
On the other hand it’s kind of fun to go with Jason’s premise that no theist is capable of courage. What kind of consequences are there really in this relative blip of an existence we call life? Just follow the rules that your obviously correct version of religion dictates and you have no worries. When you think about it, religious people should have bon voyage parties when loved ones die. Nothing sad about it. Depressing funerals should be reserved for people you think are going to hell. Then again, they obviously deserve that eternal torture so feeling sad about it is kind of like mocking God’s wisdom. Best to just throw em in a ditch and give the money you would have spent on an expensive coffin to the church. No point in wasting an opportunity to suck up to the big guy.
Shorter Prof Kerr :
1. I was happy to let Justice Sotomayor’s use of “judicial courage” go by without comment.
2. But I’m now going to poke fun at Blackman’s use of it, and paint it as “what I want is judicial courage”…
3. …studiously ignoring the fact that his proferred example of judicial courage was a case he thinks was a terrible decision
4. And then to finish off, I get to give my example of real judicial courage
5. But now I’ve given my example, I’m retiring the phrase.
Good one. Who said law Professors aren’t squabbling seven year old schoolgirls ?
I’m a little lost as to what opinions you think I must express, but for the record my argument applies as much to Sotomayor’s claim as to Blackman’s. Sotomayor and Blackman are doing the same thing, as far as I can tell (Sotomayor’s comment is just in passing, so it’s harder to be sure on that, though). I have the same reaction to both, which is the same reaction i had to similar claims when I blogged about it in 2010).
Pay no attention to the ad hominems coming from the rabble today, Professor. Your boy Blackman and SB8 has everyone riled up.
I’m a little lost as to what opinions you think I must express
Not even slightly my business. Though I shall feel free to criticize or applaud according to content.
but for the record my argument applies as much to Sotomayor’s claim as to Blackman’s.
How about Kerr’s ?
The elephant that you appear to be missing is that while cynically (but justifiably) arguing that “a courageous judgement” and “a judgement I like” are nearly coextensive, it happens that :
Prof Kerr’s specific example of a rare real courageous judgement is…..a judgement he likes. A lot :
“I think Judge Sutton’s separate opinion is excellent, but then it’s easy for me to say: Judge Sutton’s views closely match what I’ve been saying here and elsewhere for a long time”
While Prof Blackman’s specific example of a courageous judgement is….a judgement he loathes. A lot.
And by way of icing, the reason Prof Kerr offers for Sutton’s decision being courageous is – “when a lower-court judge spikes his or her own chance at promotion by handing down a ruling that the judge doesn’t like and that significantly hurts their chance at being elevated to a higher court” just four sentences after saying “It’s easy to craft an imagined audience that the Justice is claimed to be afraid of, such that rejecting that imaged audience’s view is courageous.”
So you should, of course, express whatever opinions you like. I merely suggest that you invest in a mirror.
Good lord. How many hours did you spend crafting all that intricate response to nowhere?
I remember when several federal judges in the South were making courageous decisions back in the 60’s, https://en.wikipedia.org/wiki/Frank_Minis_Johnson was only one.
I was going to make this same point.
They faced real physical danger from groups with a history of violent racism. Big difference between the KKK and Charles Schumer.
Still, I mostly agree with Orin, while noting that there are rare situations where the description is accurate.
It’s good see one of your posts.
VC isn’t what it used to be. One day I’ll get you a beer!
You owe him a beer too? What are the odds of both of us owing him a beer?
I owe him a beer . . . and I suspect I am among the few here who has delivered beer to Prof. Kerr.
The rest of you, as usual, are all talk.
I will verify that Rev. Kirkland is the only one who has delivered beer to me. And a hat, too!
I forgot the hat. I hope it was a good one, and that you like it.
Your current latilongitudinal orientation — coupled with my pre-retirement disinclination to commit alcohol-related felonies — may frustrate additional endeavors, but don’t abandon hope!
Thank you. Well said, and a welcome counter to Blackman’s rant.
I read the Volokh Conspiracy less often than I used to because his constant, often childish, and consistently poorly reasoned criticism of the Chief Justice are tiresome.
Well I think you are wrong, it does take a lot of courage to go up against sometimes overwhelming political force on the other side. Brown was definitely a case of judicial courage, Korematsu was a case of judicial cowardice. I think Heller required a lot judicial courage, even though it was obviously right, because it went up against an establishment consensus that had in some jurisdictions completely nullified an enumerated constitutional right.
This still looks a lot like decisions you agree with being courageous.
Yeah, and it’s quite silly. Heller took no courage whatsoever. What did the conservative justices risk by deciding that the second amendment protects an individual right? Criticism from the NYT editorial board? They faced neither personal nor political danger.
I also don’t buy that Korematsu must have been based on political pressure.
Sincere racism is just as likely.
I agree with Orin Kerr that “judicial courage” should be retired from any discussion of the Supreme Court–or, for that matter, federal judges. But I do want to reserve that judgment for many state court judges who are elected. Many give up profitable practices to go on the bench and serve honorably for years. Yet they know that any day they may be called upon to make a ruling which will be unpopular with their electorate. They may develop dodges to avoid exposing their unpopular decisions, but this is not always possible. For these judges, I would like to reserve the right to term their rulings “judicial courage.”
An elected official doing something that may cause him to lose an election is a pretty debased form of courage. Of course it’s a good thing if an executive or legislator makes a thoughtful decision, or a judge issues a thoughtful ruling, in spite of its unpopularity. But courageous? Come on. Let’s reserve that for people who risk a bit more meaningful consequences than having to go back to a profitable law practice.
I think what everyone here is now doing is suggesting his own image of what is courageous and trying to cabin the word “courage” to that. I believe that there is intellectual and political courage, not just physical.
District and circuit judges trying to desegregate the South were courageous. Julius Waring had crosses burned in front of his lawn and bricks thrown through his window. Frank Johnson also had a cross burned on his lawn and his mothers house was bombed. During the time period there were a number of high profile murders of civil rights activists and other white supremacist violence.
Judicial courage, you say?
What about this guy –
https://timesofmalta.com/articles/view/sicilian-judge-killed-by-mafia-takes-step-to-sainthood.870529
What a superb and extremely insightful post.
On the merits, it would be nice to be able to characterize some decisions as courageous. But, perhaps that’s not possible if that judgment is hopelessly clouded by our biases (note that Orin agreed with Sutton’s ruling).
Yes, Orin’s example was a poor one because he was doing exactly what he criticized Blackman for doing, just on the other side of the aisle. I do think, though, that his point is well taken. While I don’t agree with her rulings, Justice Barrett has issued some rulings re: religious freedom that I would consider courageous as she is putting her understanding of the law above her allegiance to the Catholic Church. Kavanaugh, too, issued some rulings before he was on the Supreme Court that brought him scrutiny in his confirmation process because they enforced Supreme Court precedent on abortion rights. Even though he personally disagreed with those precedents he chose to submit to the authority of the higher court and rule according to the law. That is what judicial courage should mean: Putting the law above politics and personal feelings. Unfortunately, as Orin points out, it is actually used to describe a judge twisting the law in order to issue a decision the writer/speaker agrees with. I concur with his initial point: Time to retire the phrase. Justices can stop trying to be “courageous” by standing up to the “other party” and start being impartial servants of the law again….
Yes, you have a point. Though I think Blackman would counter that the undermining of the independent judiciary by court packing is at least as much of a consequence to a judge who cares about the integrity of the system as missing out on an appointment to a higher court.
Like you said, though, “We’re all prisoners of our own biases,” and the whole idea of “judicial courage” plays into that. Which is why I agree with Orin’s original point in this post. Do away with the notion of “judicial courage,” get back to impartial, dispassionate jurisprudence….
And just to be clear, although I think Judge Sutton reached the correct result as a matter of precedent, that doesn’t mean I liked the result or thought it was correct in some normative sense, or that I thought the Supreme Court should reach that result. I just thought it was the correct view for a lower court judge to reach as a matter of precedent, for better or worse.
My views of what the Supreme Court should have done were a different story: https://volokh.com/2012/01/20/how-should-the-supreme-court-rule-on-the-individual-mandate/
What is your opinion of the actual ruling? Which opinions did you like and which did you not?
He was fond of the courageous ones. Not so keen on the cowardly ones.
If he claims otherwise it’s probably because he’s just scared.
My views of what the Supreme Court should have done were a different story
Ha ! That is not sitting on the fence.
That is entangling yourself in the bars of the fence in basket weaving fashion, having first lathered the fence with superglue.
Dude should have and courageous are different inquiries – that is one of the main points of the OP!
Congrats on helping to poison the well on judicial courage.
This little threadlet, from Kerr’s comment beginning “And just to be clear” has precisely zip to do with the general discussion of judicial courage, it’s about Kerr directing us to his opinion of what the court “should have” done.
You are the fella injecting “judicial courage” into the threadlet.
I think Professor Kerr’s example defeats his premise. It shows that there actually is such a thing as judicial courage. It’s simply not what most people who use the term, including Professor Blackman, say it is.
This is true, unfortunately, of virtue generally. The fact that people these days as others usually refer to virtues only in a manipulative way – to refer to people who do what they want, which is often some manipulative thing – does not mean there is no such as the virtue itself.
An ancient in times perhaps not entirely unlike our own once said the purpose of philosophy is to ensure that virtue does not go unpraised. If we take words for virtues out of our vocabulary when people corrupt them, we acquiesce in rather than combat the corruption; we make the world less safe for virtue rather than safer for it.
Indeed, to the extent it helps make independent thought more doubleplusunthinkable, removing words from the vocabulary that could be used to express or describe non-conforming thought and action tends to make nonconformist thinking less likely.
I quite agree. The fact that an expression is often misused, even usually misused, does not mean that we need to retire the expression, still less the concept it describes.
As you say, it is so with any virtue – any expression which connotes something admirable is necessarily at severe risk of being purloined by misusers, precisely because it enables them to mask their evil smell with some fragrant soap.
If we followed Prof Kerr’s advice we would have retired “liberal” before the Second World War.
I had said in a comment on an earlier post today, by a certain regular Conspiracy contributer no less, that certain types of arguments reflect an authoritarian way of thinking. A tendency to misuse terms of vietue, and in particular conflate intellectual virtue with support for ones own cause, is definitely one of those types.
More Kerr, less Blackman.
Josh’s view of “judicial courage” is rather transparently derived from the fact that he views himself as courageous.
Right? He has been all too happy to tell us about how he respectfully declined to pursue the Supreme Court clerkship we’re to understand he totally could have gotten, had he put his mind to it. He’s happy to toil in his armpit of a law school while he puts out the Good Word on the the Conservative Legal Movement in outlets where the editors lack the sense to know better than give him a platform. He has eschewed everything that betokens a successful legal academic career, in order to serve his… agenda? Well, whatever we’d call it. He’s courageous, see? Because he’s going up against the “progressive elite”!
You have a very odd reading of an article where he explicitly stated he doesn’t think he would have qualified for a Supreme Court clerkship.
Saying I’m fine with the fact that I’m not qualified to be a Olympic athlete because I don’t like exercise does not imply that I think I’m qualified to be an Olympic athlete.
“where the editors lack the sense to know better than give him a platform”
Yes. Because we’re all better off when the only voices we hear are those we already agree with….
Prof. Blackman is not a bad VC member because he says things people disagree with. Prof. Blackman is a bad VC member because he’s only interested in self-promotion, and he has no filter. He treats the VC like Twitter, a forum for him to rush out half-baked, unresearched thoughts as frequently and as quickly as possible.
No, we’re all better off when hacks are deprived of a platform, no matter which side they come down.
Considering that your stated reasons for hating him in this very comment section are based on your own inability to understand very basic English. Maybe your opinion of him shouldn’t matter to anyone else.
Well, from the 1600s until pretty recently, “courage” was slang for alcoholic beverages. A playful reference occurs in the original children’s novel THE WONDERFUL WIZARD OF OZ.
This makes it easy to say who the most courageous SCOTUS justice is: Brett Kavanaugh, of course.
More Kerr, less Blackman
The obvious flaw in Prof. Blackman’s analysis is that he presumes the courageous judge craves acceptance by the progressive elite. That might have been a factor in earlier times, but the impressive multi-decade conservative legal project has spawned its own social and professional ecosystem. I think, for example, that Justice Kavanaugh would risk far more opprobrium from those in his social and professional circles for for a decision in Dobbs to the effect of “I said that Roe was settled law in my confirmation hearing and I meant it,” than he would for a decision overturning Roe.
There are examples of real judicial courage. They are rare, because the occasion for it is rare. But can the same be said for its opposite?
Not sure how a serious person could become an actual friend of the disingenuous and overtly hostile JB.
Perfectly decent people are capable of harboring social/ideological views that you and I find so wrong we may suspect them of being disingenuous. If we can’t give the motives of such people with whom we’d otherwise be friends the benefit of the doubt, we destroy a lot of genuinely valuable relationships.
Who is he “overtly hostile” to?
Moderate post counts?
Judges don’t live in a vacuum. They have parents, children, spouses, and friends. And if those people are not lawyers, they’re likely to assess the merits of a decision in a high profile case on whether they like the policy, not on whether the result is legally sound. Aside from rare exceptions (e.g., southern judges in civil rights cases in the 60’s), I think the most “courageous” thing a judge can do is reach a result the judge believes is legally sound, knowing that the judge’s family and friends will completely reject it as a matter of policy. It’s questionable whether that should be described as “courage,” and I tend to agree with Kerr that the term should probably be retired. Such a decision is, however, admirable; those social pressures can be subtle and insidious, and may have more impact than they should.
We should also retire the notion of judicial decisions being “right” or “wrong” since those words just indicate whether the decision matches the observer’s policy preferences.
I see what you’re doing, but there are plenty of examples all over this commentariat of right/wrong and like/dislike not aligning.
Not so for courage. Certainly not so for Blackman’s explicitly partisan formulation.
I know. Just being sarcastric.
Re: “Judges don’t live in a vacuum.”
Speaking from South Texas, it would appear that an elite education is not required to recognize this statement as true. Self-evidently so even, given the verb “live”. And, except for medically assisted or DIY turkey-baster fertilization and a cognitively conceivable rare exception (see amici curiae who weren’t allowed to participate in orals in Dobbs to validate the potentiality of life in the profession derivative of original zygote formation in a petri dish), the vast majority of the members of the judging class were physically conceived through unprotected coitus causing gamete fusion, followed by assumption of burdens of gestation whether due or not so due or something along the spectrum.
On the merits of the proposition implied by the truism (judges not being hermits ensconced in their chambers), it’s obviously *not* true that none of their family members are lawyers, or that all have spouses, or living and breathing progeny. There is diversity in marital and family statuses as there is in occupations of related persons.
Some judges may not have offspring as a result of abortion even, and others will have offspring because an unexpected pregnancy wasn’t considered an undue burden, but was embraced by the judge and his/her opposite-sex-partner-in-conception. Some may have adopted, or may themselves have been adopted.
Some judges may even have been the product of conception by rape or lack of clear or legally recognized consent short of satisfying the definition of unlawful genital penetration or of “criminal conversation” for that matter. Do we really need to know, so we can attack such judge’s opinions on the ground that he or she ought to have been aborted? Because some lives are lebensunwert due to the circumstances of conception or the moral status and culpability of the sperm source, or even both of the two gamete providers committing the act of de facto consortium in consort.
Conversely, it will be true of all *living* judges as a subset of all living humans, that their status as “living” is attributable to the fact that they were not aborted or otherwise extinguished. Nonabortion and endurance of the burdens of pregnancy by their respective mothers was a sine-qua-non for their ability to now maintain the rule of law, and impart their wisdom (to the extent they have leeway to do so, which depends on their position in the hierarchy) in the cases that come before them for adjudication. And that should be true no less of the special classes: such as the one composed of wise living Latinas.
BOTTOM LINE: Procreation policy made by the Supreme Council on National Abortion Policy concerns us all, judges not excepted. But only 9 members of species homo sapiens have a vote. The rest may have a say in the First Amendment space, but has to endure the consequences of supreme pronouncements (incl. the judicially pronounced right to destroy a human fetus (technical term: feticide) judicially bestowed selectively to one genetic parent on the basis of that parent’s sex). Where is the judicial appreciation for equal protection and sex equality when it matters?
NEXT QUESTION: Do *some* judges now pump blood and breathe warm air in an existential vacuum of sorts, failing to acknowledge that the sine-qua-non of their presence on Earth, on the bench, and in & out of chambers is the fact that they were not aspired and evacuated years ago?
ARTFULLY FERTILIZED OVUM REFERENCE:
BRIEF OF AMICI CURIAE HANNAH S. – A FORMER IVF FROZEN EMBRYO AND JOHN AND MARLENE S. – ADOPTIVE PARENTS OF THE FIRST “ADOPTED” FROZEN EMBRYO IN AMERICA IN SUPPORT OF PETITIONERS, filed July 27, 2022 in Dobbs, SCOTUS No. 19-1392.
https://www.supremecourt.gov/DocketPDF/19/19-1392/185061/20210727165822368_41029%20pdf%20Parker%20II.pdf