The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Against Judicial Bravery Debates
I share co-blogger Sam's misgivings about Josh's post assessing the courage of the justices, which I think demonstrates a fundamental misunderstanding of judicial psychology.
There's a difference between lacking courage, and just not agreeing with your colleagues (or your blog critics) about the right thing to do. I've never seen good evidence that the justices secretly agreed with Josh about the right path in any of these cases and were shying away because of a lack of courage.
Two take two of his examples:
Chief Justice Roberts's infamous vote and opinion in NFIB v. Sebelius have been raked over from every angle, but at bottom, there is not much reason to doubt that he wrote the opinion he wrote because he thought it was the best way to implement his own view about the scope of judicial review in a democracy, implemented through the doctrines of constitutional avoidance, severability, etc. (That's so even if you believe the leaks about the way his vote and opinion evolved at conference, which can more easily be explained on legal grounds.)
The fact that Justice Barrett as a law professor did not write op-eds and amicus briefs or "get into the mix" is also not evidence of lack of courage. It is just as likely that she thought the cases were complicated, had better things to do with her time, or a different view about the vocation of a scholar. Frankly, if more con law professors would get "out of the mix," they would be much better scholars.
Scott Alexander once wrote a post, "Against Bravery Debates," describing the genre of internet argument:
Discussions over who is bravely holding a nonconformist position in the face of persecution, and who is a coward defending the popular status quo and trying to silence dissenters. These are frickin' toxic.
I understand the temptation, and I too have succumbed to it in the past, but I don't think grading the justices on their bravery -- especially without evidence that their behavior isn't better explained by thoughtfulness, disagreement, or judicial philosophy -- is particularly fruitful or accurate.
