Justice Sotomayor’s disapproval in Whole Woman’s Health, v. JacksonThis passage concludes the article:
The Court’s greatest moments have been when it has ensured constitutional rights cannot be “nullified openly, directly or indirectly, by state legislators, executive or judiciary officers or judicial staff” . . No matter if it was done “ingeniously” or “ingenuously”. ” Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). The fractured Court of today demonstrates no such Courage.
Justice Sotomayor doesn’t explain the reasons for Cooper Court showed courage. It is not clear why she did this. JacksonCourt did not show courage. These conclusions are obvious to her. I disagree. For some time, I have been working on an essay about judicial courage for the Texas Review of Law & Politics. This is a glimpse of the work I have done.
My view is that judicial courage cannot be defined in terms of any one particular legal ruling. It is not necessary to decide a case for X. The essence of courage in judicial matters is not casting a ballot knowing it won’t be popular. You will be unpopular among your peers. Judges on other courts are not as popular. Politically, they are unpopular. People are not happy with them. Academics are not popular. So on.
Cooper v. AaronFor all its shortcomings, it was an admirable decision. The South was littered with “Impeach Early Warren” billboards at the time. Southern Manifesto argued against the Warren Court. Many of the federal judges involved in cases involving desegregation faced death threats and security detail. These were the nine justices who ruled in CooperThey knew that their decision was going to be very unpopular in the entire country. To show solidarity, all nine signatures were attached to the opinion. It is likely that they knew the outcome would not be popular, but still signed the opinion.
The world we live today is very different. Not odious segregationists are the biggest threat to our judicial independence, but progressive elites. Although Court-Packing has lost its prospects, it is gaining a legitimacy on the left. This I can’t thank enough. Make no mistake. Court-Packing is an open effort to force the Justices towards progressive results. This threat was made explicit by Senator Whitehouse in his amicus brief.
Today, the judiciary is showing courage by casting a ballot in spite of these forces. Today’s judicial courage says, “I don’t care what your Court will do.” I will be following the law.” Today’s judicial courage says, “Let this be neutral in the Constitution on the issue and bring it back to the democratic process.” Today’s judicial courage says, “I won’t distort a century worth of federal court jurisprudence to make another abortion epicycle.” Today’s judicial courage says, “I will not distort a century of federal courts jurisprudence in order to create yet another epicycle for abortion.” There is nothing brave about defending abortion rights today. For his “skeletal dissent”, Chief Justice Roberts was lauded by the progressives elites, along with Justices Kennedy, O’Connor and Souter before him. Today’s courage comes in casting a ballot, even though progressive elites may object.
Justice Sotomayor is completely backwards in her judicial courage It also includes Casey The judicial courage was completely regressive. The ability to rule “under fire” is precisely the reason why federal judges have life-tenure. To be strong means to ignore the political consequences of a ruling. Thank you JacksonCourt displayed fortitude no matter what.