The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Time to Retire the Notion of Judicial Courage," Reprise
I'm with Sam and Will.
I share Sam's and Will's basic reaction to Josh's post about the "backbone" of Supreme Court Justices, and I thought I would repost my 2021 take on the whole idea of "judicial courage" from a prior debate with Josh:
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.
