New Essay: "Judicial Courage"

Coming soon in the Texas Review of Law & Politics issue on "Uncommon Fortitude"

The Texas Review of Law & Politics is devoting its winter issue to the theme of Uncommon Fortitude. I wrote a short essay, titled Judicial Courage. Here is the even-briefer abstract:

What is judicial courage? Supreme Court justices often accuse their colleagues of lacking fortitude, but they seldom explain what this concept means. This essay will provide a brief discourse about judicial courage. Part I considers how Justices on the Supreme Court have used this doctrine—both to praise and to criticize. Part II attempts to define judicial courage. And Part III applies these principles to decisions of the lower courts.

Please email me with any comments or feedback.

 

Comments

[Cal Cetín]

If you want to freak out a politician*, just send them a letter congratulating them on "your courageous decision."

*Not a judge, of course, judges aren't politicians.

[hobie]

Ain't we already go over this two weeks ago, Blackman? You're repeating yourself on this very, very subjective topic

[hobie]

What would be courageous to me is a right-winger here to explain to us all why the top Republican operatives in five states will not all be charged federally for massive coordinated vote fraud on 13,000,000 people

https://www.thebulwark.com/its-long-past-time-to-prosecute-phony-gop-electors/

[BravoCharlieDelta]

What would even be more courageous is finding some article from 2020 that tried to make the claim this was somehow illegal.

Because we know this is just more Lawfare treason and democracy undermining by the people have a long history of treason and democracy undermining aka "election fortifying".

[hobie]

I mean..heh...they all signed their names on it and then actually sent it in. And now they are a going to prison. The GOP in those states will be decimated. This is so ironic.

[Michael P]

What would be courageous would be to name the people you and he are accusing of serious crimes.

Evidence to date says you aren't courageous.

[hobie]

This is quite simple, Michael P. If you look at the forged documents that each of these cabals sent to Congress you will see that each Republican seditionist printed and signed their own name. I'm surprised they're not in prison already

[hobie]

I mean, this is so open and shut, but I imagine their looking for cooperators...because all of us knows where this is going

[hobie]

But you tell me... how does the GOP survive this?

[Juste Milieu]

“Judicial courage is difficult to separate from the substantive outcome in a case.”

That pretty much sums it up. Justices are to each other brave or craven in ways indistinguishable from how, on any given day, Joe Manchin can be courageous in Mitch McConnell’s estimation and a bum to Chuck Schumer, while Mitt Romney might momentarily be a coward to Donald Trump and a “Profile in Courage” in the view of the John F. Kennedy Library Foundation.

All the same, Professor Blackman, this is a thought-provoking piece, especially that section that chronicles how some federal judges have effectively pushed back against extending binding precedents they believe to be inconsistent with constitutional command. There are good reasons for being bullish (as you put it) about this development, but I’m not convinced it has much to do with “courage”—at least not in the same sense that term is used elsewhere in the article.

[Alpheus W Drinkwater]

I note that Prof. Blackman wants feedback emailed to him. I take that to mean he does not read these comments. Hard to blame him.

[Lee Moore]

I wish to complain about the conflation of "courage" and "fortitude."

Courage is involved in facing down a danger, which might be a very serious one. But it may also be a very temporary one. You may have to charge a machine gun nest, and for thirty seconds or so, you're being very courageous. But then it's over, one way or the other.

Fortitude connotes the endurance of pain or suffering on a longer timescale.

If a judge follows the law conscientiously but in so doing makes himself a pariah in his community, his profession, and even in his family, that requires fortitude - the pain is not going away any time soon.

Julius Caesar put it best :

"qui se ultro morti offerant facilius reperiuntur quam qui dolorem patienter ferant"

Those who will volunteer to die are easier to find than those who will endure suffering with patience

[bernard11]

Josh might want to check the meaning of "tete a tete."

[Juste Milieu]

Indeed, I think Josh meant "tit [Stevens in Orden] for tat [Scalia in McCreary]."

[Rev. Arthur L. Kirkland]

This seems just the type of article -- published in a downscale, right-wing, separatist, partisan publication -- that will make Prof. Blackman's place at South Texas College Of Law Houston even more secure.

Enjoy another few decades at the bottom of the barrel, Prof. Blackman.

[fafalone]

Oh yeah you've blogged about this here before, isn't this when you were making that risible argument that courage is doing exactly what your friends and allies want? What will make you popular at the cocktail parties you attend? When doing otherwise would render your entire legal movement as failed, causing it to be abandoned? All because it would piss off people who already don't like you?

I stand by asserting the mark of courage is standing by your principles when it put you at odds with your friends and allies, not when it puts you at odds with the media apparatus and twitterati of the other political party.

Ever the total hack, I have no doubt you believe conservatives making rulings unpopular with liberals, and liberals making rulings unpopular with other liberals, is the only situation where a Justice demonstrates 'judicial courage'.

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The concept of judicial courage is important in the field of justice, especially in the context of the work of judges, whose decisions can have a significant impact on society. Understanding what judicial courage means requires an analysis of various situations in which judges are forced to make difficult decisions, sometimes in the face of external or internal pressures.