The Volokh Conspiracy

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Published Article in TROLP: "Judicial Courage"


The Texas Review of Law & Politics published my new article, Judicial Courage. Here is the 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 provides a brief discourse about judicial courage. Part I considers how Justices on the Supreme Court have used this virtue—both to praise and to criticize. Part II attempts to define judicial courage. Part III applies these principles to decisions of the lower courts. 

I wrote this article long before the Dobbs leak, and added a postscript on the issue:

I began writing this Article in December 2021, shortly after Dobbs v. Jackson Women's Health Organization was argued. In subpart III.A, I discussed how judicial courage in the lower courts may have trickled up, and given the Supreme Court the fortitude to grant review in Dobbs. That was all I planned to write about the pending abortion case. Given the publication schedule, I anticipated that Dobbs would be decided after this Article went to print. However, the unprecedented leak of Justice Alito's draft majority opinion changed those plans. Here, I will not speculate on how the draft opinion leaked. Nor will I venture any predictions about how the Supreme Court will ultimately resolve Dobbs. To quote Yogi Berra, "It ain't over, till it's over." Or to paraphrase Chief Justice Roberts, "Don't count your holdings before they hatch."

Rather, I will end this Article by quoting from Justice Thomas's remarks at the Old Parkland Conference in Dallas, Texas, on May 13, 2022. A member of the audience asked Justice Thomas to define stare decisis. He responded:

I think there was a word that was used today. That was really interesting, because I think it's a central word, and it's "courage." The way that Walter Williams did it in one of his books from the 1980s is "All It Takes Is Guts." And I think a lot of people lack courage, like they know what is right, and they're scared to death of doing it. And then they come up with all these excuses for not doing it. So even with stare decisis, you will see in a lot of those instances where people start, they run out of arguments. I always say when someone uses stare decisis, that means they're out of arguments. And now they're just sort of waving the white flag. And then that's I just keep going then. I think if you have an argument, you make it, but I'm not going to go along with something. If you buy that argument then Plessy should never have been overruled. I mean, you cannot overrule Plessy and when you raise that with them, then they don't they well, they give you err, ahh, err, ahh, err, ahh.

Was Justice Thomas suggesting that one or more of his colleagues lack the courage to overrule Roe v. Wade? I do not know. But here, Thomas channels various dissents he authored or joined, in which he faulted the Court for lacking judicial courage. Soon enough, we will find out if the Justices who are "out of arguments" are "scared to death" of overruling Roe.

Soon enough.