Bonus 51: The Slippery Slope of Judicial "Courage"

As calls for judges (and justices) to show "courage" grow louder, the case for why courage shouldn't become a license for federal courts to ignore the public—or the representatives it elects.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of Thursday’s content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if your circumstances permit:

One of the central distinctions between the substance of Monday’s free issues and that of Thursday’s bonus content is the personalization of the latter. This week, I wanted to reflect on the idea of judicial “courage,” which is back in the news thanks to remarks made by Fifth Circuit Judge James Ho at the Heritage Foundation last week. The basic gist, reflected not just in Judge Ho’s speech but in similar remarks by other prominent Trump-appointed circuit judges (including Sixth Circuit Judge Amul Thapar), along with some conservative legal commentators, is to make the affirmative case for why federal judges should hand down rulings entirely without regard to the public backlash that they may provoke—arguing that to do otherwise is to subvert their responsibilities as judges. As long as they’re “correct,” the argument goes, it shouldn’t matter if opinions are “unpopular.”

I have no problem with judicial “courage” in the abstract. Part of why Article III provides for unelected judges is to insulate those tasked with interpreting the Constitution from direct democratic accountability—to preserve the ability of federal courts to stand as a bulwark against tyrannies of the majority. But as I explain below the fold, even if we could agree on an objective definition of the concept (and, as Professor Orin Kerr has long suggested, that’s a fool’s errand), judicial “courage” is not an absolute good. Broader public support of the courts is essential to the ability of courts to hand down decisions with which a majority of the public may well not agree. Thus, although some of the most important decisions courts hand down will likely be those that run against the tide of public opinion, that only makes it more important, in other cases and contexts, for federal courts to be (and act as if they are) democratically accountable.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.

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One of my favorite legal books is Robert Cover’s Justice Accused: Antislavery and the Judicial Process. Published in 1975 (when Cover was 32!), the book is a powerful, challenging, and evocative study of what Cover calls the “moral-formal” dilemma faced by judges (and justices) tasked with enforcing the Fugitive Slave Acts of 1793 and 1850—especially those jurists who were personally opposed to slavery as an institution. The dilemma these judges faced, as Cover so powerfully articulates and demonstrates, was not between their personal opposition to slavery and some analytically “pure” approach to interpreting those statutes; it was between hostility to slavery and the very real belief that the preservation of the Union turned on the enforcement of these compromise (and compromised) laws in those cases in which there was no reasonable legal basis for refusing to apply them. In other words, the dilemma was the risk that letting their personal preferences influence their interpretations and applications of the relevant statutes would literally tear the country apart.

Where Cover’s book really hit me the first time I read it is as a wide-eyed 2L is in making clear that the “moral-formal” dilemma it so richly documents is really what Professor Richard Kay described in 1977 as a “moral-moral” dilemma. Quoting Cover, it’s “a decision between the substantive moral propositions relating to slavery and liberty and the moral ends served by the formal structure [of the government] as a whole.” Which “morality” should take precedence? In one form or another, this debate goes all the way back to the debate over the Latin maxim, fīat iūstitia ruat cælum (“let justice be done though the heavens fall”). If the heavens fall in response to the justice done today, how can justice be done tomorrow?¹

To its everlasting credit, Justice Accused does not offer a black-and-white answer to that question. Nor, in my view, does one exist. Instead, I’d always taken away from the book the notion that this is an inherent tension in judging (and in law, more generally)—when should the institution take precedence over the issue. And the best anyone can do is to understand that this tension inheres, and to try not to tilt (or be responsible for tilting) the scales irrevocably to one side.

Against that backdrop, arguments encouraging judges to be “courageous,” or to not shy away from handing down “unpopular opinions,” are missing (at least) half of the point. In a system in which the real power of federal courts comes from public acceptance of, and acquiescence in, the legitimacy of judicial decisionmaking, decisions (and behavior) that too often bucks public opinion, or that otherwise undermines public confidence, present a potentially grave risk to the ability of judges to hand down additional “courageous” or “unpopular” decisions in the future.

Perhaps it’s not surprising that renewed arguments for judicial “courage” are coming at the same time as at least one Supreme Court justice is publicly arguing that Congress lacks the constitutional authority to hold the Supreme Court to account. It’s the same false dichotomy between judicial accountability and judicial independence. It may be counterintuitive, but proper accountability actually promotes judicial independence, rather than undermining it.

Put another way, federal judges ought to be invested in the project of maintaining public confidence in the judiciary even as they are also invested in the project of faithfully interpreting and applying the relevant law. That doesn’t mean, as Finley Peter Dunne’s fictional “Mr. Dooley” so famously quipped in the early 1900s, that “th' Supreme Court follows th' iliction returns.” But it does mean that there is a very serious risk to too many decisions (or publicly alarming behaviors) that don’t.

1. For another version of this argument, in Eichmann in Jerusalem, Hannah Arendt argued (among lots of other things) that capital punishment was uniquely appropriate for genocide largely to reinforce the point that no other crime was morally equivalent. Death thereby reinforced genocide’s uniqueness, whereas allowing capital punishment for “lesser” offenses would undermine it. For Arendt, in other words, “doing justice” for genocide required a punishment that could never be used for anything else.