What Is Judicial Courage?

For the symposium on Neal Devins as well as Lawrence Baum's novel book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019).

           There’s niggling writing exploring the nature as well as pregnant of judicial courage.  Commentators sometimes praise private decisions every bit “courageous,” simply that ordinarily agency the determination falls inwards problem alongside the commentator’s ain preferences.  More broadly, I suspect most people intuitively yell upward judicial courage agency beingness willing to homecoming “unpopular decisions” that the gauge nonetheless believes are right.  

The Company They Keep is non virtually judicial courage, nor does it speak over the dependent area at all.  Yet i of the riches of this lucid as well as well-researched, of import volume is that it provokes fresh questions virtually the nature of judicial decision-making.  

As the volume shows, the real concept of “unpopular decisions” is a shallow i that begs of import questions.  Few decisions are universally unpopular; they are to a greater extent than probable to last pop amid some groups or interests, unpopular amid others.  Taking i cutting at the differential distribution of back upward for Court decisions, Neal Devins as well as Lawrence Baum generate information showing, for example, that 44% of those alongside post-graduate educational degrees concur alongside the Court’s determination that flag burning is First Amendment-protected speech, piece alone 14% of those alongside lower levels of didactics agree.  The flag-burning decision, Texas v. Johnson, is yet “unpopular,” simply much to a greater extent than thence amid some parts of the public.

Similarly, post-graduate score holders are considerably to a greater extent than supportive than those alongside lower levels of didactics of the Court’s early on school-prayer decisions, or the Grutter decision on affirmative action, or the rights of detainees at Guantanamo (Boumediene) to habeas corpus.  Conversely, those without post-graduate degrees are to a greater extent than supportive of the Court’s Second Amendment decisions than those alongside such degrees.  In other of import areas, educational levels create non deport upon the (un)popularity of important Court decisions; virtually 80% of those inwards both educational groups dislike the Court’s Citizens United decision.

 If major Supreme Court decisions tended to gibe to the watch of the overall “majority” amid the public, these differences inwards back upward amid diverse groups mightiness last of less interest.  But that this is non the instance is i of the major points of The Company They Keep.  In fact, world majorities concur alongside Court decisions alone virtually 60% of the time, non much higher than a money flip.  And the Court non alone issues decisions that are highly unpopular, simply sticks alongside those decisions fifty-fifty inwards the facial expression upward of overwhelming pop as well as political opposition.  As already noted, 80% of Americans disagree alongside Citizens United (and 65% strongly disagree), yet the Court bulk continues to number novel decisions that follow the same logic.  In before eras, the Court similarly ordered busing or struck downwards second-trimester abortion regulations inwards the facial expression upward of intense popular-majority opposition.  

If Presidents are lucky plenty to select plenty vacant seats to fill, novel appointments mightiness movement the Court inwards the direction of then-prevailing pop views.  But that is a affair of luck, non inevitability.  As I select argued, as well as The Company They Keep confirms, the Court has considerable liberty to act, as well as does act, opposite to the watch of “popular majorities.”   The Court is non necessarily a “majoritarian” institution.  As Devins as well as Baum conclude, “we dubiety that volume world sentiment does a corking bargain to deter Justices from reaching decisions they would otherwise prefer to reach” (p.154).

But Devins as well as Baum also debate that, if Court decisions are frequently at odds alongside the preferences of “the volume public,” their decisions create look to last to a greater extent than inwards accord alongside the views of the “institutional legal elite” (as the information inwards a higher house suggests).  The volume is a chip vague virtually who exactly constitutes this elite of the legal profession, simply it seems to include the press that covers the Court, the elite police schools (“The importance of legal academics should last underlined,” p.42), the to a greater extent than nationally-oriented as well as Court-oriented segments of the bar, as well as organizations similar the Federalist Society as well as the American Constitution Society.  

The volume does non endeavour to brand whatever traditional causal claims that the evolution of sure positions amid legal elites thence causes Justices to adopt those views.  Instead, it offers a social-psychological model, which argues that Justices already come upward steeped inwards these elite legal worlds, that their views select been forged inside that world, as well as that they possess social identities (about which they care, every bit does everyone) to a greater extent than jump upward alongside their involvement inwards abide by as well as blessing from inside these elite reference groups than alongside blessing from the full general “public.” The primary “audience” that Justices aid virtually is these legal elites.  

H5N1 important issue, then, which the volume hints at simply does non explore deeply, is what exactly these “legal elites” aid virtually when it comes to judicial decisions.  To the extent they aid significantly virtually the legal integrity of decision-making, which Devins as well as Baum propose they create (even if unlike groups inside the legal elite select unlike views virtually what that means, every bit the polarized legal elite of our era does), The Company They Keep suggests a social-psychological machinery through which legal integrity is i important influence on judicial decisions.

This brings us dorsum to the dependent area of judicial courage.  Judges who believe campaign-finance regulations violate the First Amendment, for example, are non probable to last every bit good troubled that 80% of Earth dislikes those outcomes if their elite legal “reference groups” celebrate those decisions every bit legally sound.  Similarly, dorsum inwards the era when judges were boom downwards second-semester abortion laws fifty-fifty if those laws had wide world support, full general “public opinion” sure enough mattered less when the elite legal reference groups virtually which these judges most cared resoundingly approved those decisions.  

Devins as well as Baum enable us to see, then, that judicial courage mightiness best last idea of every bit rendering decisions (particularly on major issues) that the gauge believes are “right” even when the elite legal reference groups that affair most to that gauge volition strongly condemn that decision.  If Devins as well as Baum’s theory is right, those are the contexts inwards which judges must overcome the greatest psychological strain, a strain non  between “what I believe the police requires” as well as what “the majority” prefers simply betwixt my belief every bit a gauge as well as the belief of those upon whom my ain feel of identity, reputation as well as stature rests.

Defined this way, how frequently nosotros run into acts of judicial courage?  I volition piece of occupation out readers to their ain judgments virtually contemporary judges, as well as I volition avoid law-clerk hagiography past times non writing virtually judges for whom I clerked.  But I volition offering ii brief examples from the past.  The commencement is Hugo Black, thoroughly a production of Alabama at the fourth dimension he joined the Supreme Court as well as the alone Justice from a Deep South solid soil on the Supreme Court that decided Brown v. Board of Education (thanks to Akhil Amar for reminding me of this example).  After the decision, Black was barred from his 50^th police schoolhouse reunion at the University of Alabama Law School; the Alabama Senate passed a resolution prohibiting him from beingness buried inwards the State; as well as his ii sons (one on a path to an Alabama Senate seat) had to movement out of the State every bit a final result of the Alabama backlash to Black’s vote inwards Brown.  It is hard to believe Justice Black did non realize reactions of these kinds were probable inwards Alabama – inwards fact, he battled inside the Court against using “all deliberate speed” inwards the determination because he knew the South as well as knew that phrase would larn an excuse to prolong desegregation.  Perhaps past times the fourth dimension of Brown¸ Justice Black’s sole reference grouping was liberal sentiment leaders inwards the North, non inwards Alabama, simply I dubiety it.

The minute instance is to a greater extent than recent.  Justice Sandra O’Connor in conclusion seems to last getting her due, to which Evan Thomas’ superb biography is contributing.  I had the chance to commencement bring out Justice O’Connor upward closed early on inwards her career (I clerked for Justice Thurgood Marshall inwards 1984-85), thence from to a greater extent than of a distance.  There are many familiar criticisms of her to a greater extent than pragmatic trend of decision-making, every bit good every bit of specific votes she cast.  But piece Justice O’Connor never faced consequences for her votes every bit dramatic every bit those Hugo Black endured, she was capable of regularly doing what she idea was correct fifty-fifty inwards cases inwards which it was obvious she would facial expression upward the scorn as well as anger of the elite legal actors that were her most natural referent grouping (that’s why the proper substantive of “no to a greater extent than O’Connors” arose amid those who had been most responsible for her appointment).  Defined inwards the price described here, I saw a Justice alongside the backbone to stand upward apart from her natural circle of validation as well as exhibit the form of judicial courage that The Company They Keep helps us run into is the most hard nosotros attain. 

One of the tributes to the fresh perspective Devins as well as Baum render is that they spawn novel questions virtually judges as well as courts or helps us to inquire one-time questions alongside fresh insight.