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.