Time to Retire the Notion of “Judicial Courage”?

A recent article explains. Justice Sotomayor Recovers from Judicial “Courage.”Josh Blackman, my co-blogger and friend, argues that voting for conservative Justice requires courage. He suggests that you vote to upset the left.

Not the evil segregationists who pose the greatest threat to independence, but rather progressive elites. Although Court-Packing has lost its prospects, it is gaining a legitimacy on the left. This I can’t thank enough. It is not a mistake. Court-Packing, a clear effort to press the Justices into favoring progressive outcomes, is what you see. In Senator Whitehouse’s amicus brief, this was explicitly stated.

Today’s judicial courage casts a vote against these forces. Today’s judicial courage says, “I don’t care what your Court will do.” “I will follow 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, judicial courage is saying, “I will not distort a century of federal courts jurisprudence in order to create yet another epicycle for abortion.” Today’s judicial courage says, “I will not distort a century of federal courts jurisprudence in order to create yet another epicycle for abortion.” It is not courageous to support abortion rights. Chief Justice Roberts was feted by progressives elites for his skeletal dissent, as were Justices Kennedy, O’Connor, and Souter, before him. Today courage means casting your vote knowing that the progressive elites won’t approve.

A different proposition comes from me: Is it possible to simply end the concept of “judicial bravery”?  This Ambrose Bierce-inspired definition was my proposal ten years ago.

A Courageous Judicial Decision is defined:Un judicial ruling that is not only a stretch of the law, but also matches the policy preferences of the observer.

Even a decade later, this still fits the majority of uses of the word.  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.”  The dictionary defines courage as “courage” which is the strength to face fear or grief. The adjective “courageous” refers to a judge who is willing and able to make a decision in your favour. It is not possible for them be weak or afraid.  It is easy to argue this within a political culture.  This argument is very easy in a political culture. It is possible to create an imagined audience, which the Justice fears. So rejecting this image is considered courageous.  However, it is often relegated to the belief that the brave thing to do is to follow the lead of the speaker.

However, this doesn’t necessarily mean that there aren’t legal opinions which show courage.  A judge could feel the law calls for a certain answer in some cases. This can be despite the fact that they know it will have negative personal consequences. If a lower-court judge gives a negative ruling, it can significantly reduce their chances of being promoted.  Think about Judge Jeffrey Sutton’s 6th Circuit opinion upholding the Affordable Care Act. Sutton’s outstanding opinion, which is based on traditional conservative judging and despite his efforts to make the opposite view acceptable for the GOP, ensured that he would not be included in any future GOP shortlist.

However, these situations are very rare.  These are not cases you would call courageous.  It’s better, on average, to just not use the term, or to at least be skeptical about its usage.