Wednesday, April 10, 2019

What is Judicial Courage?

Rick Pildes

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

           There’s little writing exploring the nature and meaning of judicial courage.  Commentators sometimes praise individual decisions as “courageous,” but that usually means the decision falls in line with the commentator’s own preferences.  More broadly, I suspect most people intuitively think judicial courage means being willing to render “unpopular decisions” that the judge nonetheless believes are right.  

The Company They Keep is not about judicial courage, nor does it discuss the subject at all.  Yet one of the riches of this lucid and well-researched, important book is that it provokes fresh questions about the nature of judicial decision-making.  

As the book shows, the very concept of “unpopular decisions” is a shallow one that begs important questions.  Few decisions are universally unpopular; they are more likely to be popular among some groups or interests, unpopular among others.  Taking one cut at the differential distribution of support for Court decisions, Neal Devins and Lawrence Baum generate data showing, for example, that 44% of those with post-graduate educational degrees agree with the Court’s decision that flag burning is First Amendment-protected speech, while only 14% of those with lower levels of education agree.  The flag-burning decision, Texas v. Johnson, is still “unpopular,” but much more so among some parts of the public.

Similarly, post-graduate degree holders are considerably more supportive than those with lower levels of education of the Court’s early 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 more supportive of the Court’s Second Amendment decisions than those with such degrees.  In other important areas, educational levels do not affect the (un)popularity of significant Court decisions; about 80% of those in both educational groups dislike the Court’s Citizens United decision.

 If major Supreme Court decisions tended to correspond to the view of the overall “majority” among the public, these differences in support among various groups might be of less interest.  But that this is not the case is one of the major points of The Company They Keep.  In fact, public majorities agree with Court decisions only about 60% of the time, not much higher than a coin flip.  And the Court not only issues decisions that are highly unpopular, but sticks with those decisions even in the face of overwhelming popular and political opposition.  As already noted, 80% of Americans disagree with Citizens United (and 65% strongly disagree), yet the Court majority continues to issue new decisions that follow the same logic.  In earlier eras, the Court similarly ordered busing or struck down second-trimester abortion regulations in the face of intense popular-majority opposition.  

If Presidents are lucky enough to have enough vacant seats to fill, new appointments might move the Court in the direction of then-prevailing popular views.  But that is a matter of luck, not inevitability.  As I have argued, and The Company They Keep confirms, the Court has considerable freedom to act, and does act, contrary to the view of “popular majorities.”   The Court is not necessarily a “majoritarian” institution.  As Devins and Baum conclude, “we doubt that mass public opinion does a great deal to deter Justices from reaching decisions they would otherwise prefer to reach” (p.154).

But Devins and Baum also argue that, if Court decisions are often at odds with the preferences of “the mass public,” their decisions do seem to be more in accord with the views of the “institutional legal elite” (as the data above suggests).  The book is a bit vague about who exactly constitutes this elite of the legal profession, but it seems to include the press that covers the Court, the elite law schools (“The importance of legal academics should be underlined,” p.42), the more nationally-oriented and Court-oriented segments of the bar, and organizations like the Federalist Society and the American Constitution Society.  

The book does not try to make any traditional causal claims that the development of certain positions among legal elites then causes Justices to adopt those views.  Instead, it offers a social-psychological model, which argues that Justices already come steeped in these elite legal worlds, that their views have been forged within that world, and that they possess social identities (about which they care, as does everyone) more bound up with their interest in respect and approval from within these elite reference groups than with approval from the general “public.” The principal “audience” that Justices care about is these legal elites.  

A significant issue, then, which the book hints at but does not explore deeply, is what precisely these “legal elites” care about when it comes to judicial decisions.  To the extent they care significantly about the legal integrity of decision-making, which Devins and Baum suggest they do (even if different groups within the legal elite have different views about what that means, as the polarized legal elite of our era does), The Company They Keep suggests a social-psychological mechanism through which legal integrity is one significant influence on judicial decisions.

This brings us back to the subject of judicial courage.  Judges who believe campaign-finance regulations violate the First Amendment, for example, are not likely to be too troubled that 80% of the public dislikes those outcomes if their elite legal “reference groups” celebrate those decisions as legally sound.  Similarly, back in the era when judges were striking down second-semester abortion laws even if those laws had broad public support, general “public opinion” surely mattered less when the elite legal reference groups about which these judges most cared resoundingly approved those decisions.  

Devins and Baum enable us to see, then, that judicial courage might best be thought of as rendering decisions (particularly on major issues) that the judge believes are “right” even when the elite legal reference groups that matter most to that judge will strongly condemn that decision.  If Devins and Baum’s theory is right, those are the contexts in which judges must overcome the greatest psychological strain, a strain not  between “what I believe the law requires” and what “the majority” prefers but between my belief as a judge and the belief of those upon whom my own sense of identity, reputation and stature rests.

Defined this way, how often we see acts of judicial courage?  I will leave readers to their own judgments about contemporary judges, and I will avoid law-clerk hagiography by not writing about judges for whom I clerked.  But I will offer two brief examples from the past.  The first is Hugo Black, thoroughly a product of Alabama at the time he joined the Supreme Court and the only Justice from a Deep South state 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 50th law school reunion at the University of Alabama Law School; the Alabama Senate passed a resolution prohibiting him from being buried in the State; and his two sons (one on a path to an Alabama Senate seat) had to move out of the State as a result of the Alabama backlash to Black’s vote in Brown.  It is hard to believe Justice Black did not realize reactions of these kinds were likely in Alabama – in fact, he battled within the Court against using “all deliberate speed” in the decision because he knew the South and knew that phrase would become an excuse to prolong desegregation.  Perhaps by the time of Brown¸ Justice Black’s sole reference group was liberal opinion leaders in the North, not in Alabama, but I doubt it.

The second example is more recent.  Justice Sandra O’Connor finally seems to be getting her due, to which Evan Thomas’ superb biography is contributing.  I had the opportunity to first observe Justice O’Connor up close early in her career (I clerked for Justice Thurgood Marshall in 1984-85), then from more of a distance.  There are many familiar criticisms of her more pragmatic style of decision-making, as well as of specific votes she cast.  But while Justice O’Connor never faced consequences for her votes as dramatic as those Hugo Black endured, she was capable of regularly doing what she thought was right even in cases in which it was obvious she would face the scorn and anger of the elite legal actors that were her most natural referent group (that’s why the cry of “no more O’Connors” arose among those who had been most responsible for her appointment).  Defined in the terms described here, I saw a Justice with the backbone to stand apart from her natural circle of validation and exhibit the kind of judicial courage that The Company They Keep helps us see is the most difficult we attain. 

One of the tributes to the fresh perspective Devins and Baum provide is that they spawn new questions about judges and courts or helps us to ask old questions with fresh insight.


Out anti-democratic system helps explain this better, I think.

80% of 'people' oppose Citizens United.

Well, about 10%, say, of them are prevented from voting from various suppression methods (felon disenfranchisement, regular irrational purges, ID requirements).

Aggressive gerrymandering essentially eliminates another 10% let's say (conservative estimate). Now we're down to 60%...We've got other countermajoritarian stuff going on here (Senate, filibuster, Amendment process)...Increased polarization and gerrymandering means that increasingly only primaries where the hard core extremists turn out disproportionately win out... And 20% of hard core conservatives love Citizen's United if and probably only because it serves their only real political principle: to win. So, we get a system where the 20% actually dictate policy.

Do you have any specific examples of cases where Justice O'Connor demonstrated courage (as you define it)?

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The question makes sense since the test is "even when the elite legal reference groups that matter most to that judge will strongly condemn that decision" but even various opinions that we might think is "courageous" here (let's say a few regarding abortion, including her lesser known Bray dissent) are probably being criticized most strongly by those she might not care about. Strong ideological conservatives that favored Scalia wasn't her concern.


The Court's decision in Citizens United (5-4) permitted wealthy conservatives to contribute and assist in the election of GOP candidates for political office in various ways. The Trump tax bill of 2017 afforded significant tax reductions to the wealthy as well as to corporations. In conjunction, the Court's decision and the tax bill permit the wealthy to in effect politically "tithe" campaigns of GOP candidates for political office from their tax savings annually, demonstrating their "faith" in retaining their benefits under the 2017 tax bill. Consider the financial leverage provided to the GOP by such a small group, assuring to them the benefits of income inequality. The Federalist Society must be proud of its successes displaying their libertarianism.

The treatment of Justice Black post-Brown was part of the GOP Southern Strategy that makes up much of the conservatives in the GOP, reinvigorated by Trump in 2016 and continuing. And the Federalist Society in its formation attacked primarily the judicial activism of the Warren Court, the foundational decision of which was Brown. Connect the dots?

Justice O'Connor received snark from Justice Scalia for one of her onions. But I don't know if her opinion was courageous.

The fight over the legacy of Brown continues:

Mark, as a fan of hers may I suggest Romer and Casey as two examples?

And Lawrence

And Kelo.

In addition to "courage", though, Justice O'Connor was great for another reason. She assembled majorities. Casey is a great example of this-- her undue burden standard saved Roe and went from a single justice concurrence to a rule of law.

The job of a SCOTUS justice is to count to 5. Really. Except in very rare circumstances (e.g., Holmes and Brandeis on free speech), issuing lone dissents is not good job performance. The point is to work with your colleagues, because a single Supreme Court vote is worth nothing; only a group of 5 gets you somewhere.

Good examples.

Her vote in McConnell, working with Stevens to craft a majority to uphold most of the campaign finance law, was also notable. Alito shows the importance of her seat.

I appreciate justices like her, even if some are scornful at her balancing. There is a role for various types of justices, including "balancing" justices with "undue burden" and "endorsement" tests that the Scalias of the world sneer at. O'Connor also had some good dissents. And, then there are a few opinions that burned her.

She at times worked with Breyer. And, he gets similar scorn at times.

I will ask this question, how important were organizations like the Federalist Society when O'Connor was in her formative years the law and judgeship?

O'Connor served as an elected official in her state, probably before the Federalist Society was established. She faced gender difficulties in the ability to practice law. Renquist, a one time admirer o O'Connor romantically was perhaps more immersed in the movement that established the Federalist Society. Maybe that's why she rejected him. (Recall his pre-SCOTUS days blocking minorities from voting in his home state.)

Linda Greenhouse has a sobering column at the NYTimes today on recent SCOTUS decisions that ties into this Blog's book Symposium. "Climate change" in the Court?

The Federalist Society began in 1982 but their influence grew more over time.

I question how much something like that really influenced O'Connor, thus my comment questioning how "courageous" she was, though she still surely cared about conservatives respecting her generally speaking. But, take Lawrence v. Texas. Barry Goldwater supported gay rights. And, Ted Olson (another big conservative voice) fought for marriage equality.

These days, many federal judges have much more concern about the Federalist Society, in part since they helped get them their jobs. As Shag references, O'Connor also has a complex background that makes her somewhat of a special case.

I doubt someone like O'Connor could get pass the 'vetting' process of organizations like the Federalist Society these days. Any indication of independence will get you labeled a dangerous 'RINO' and you're out, now that the GOP fringe=the base=the mainstream...

As far as I recall, the most opposition to her nomination at the time came from the right, particularly since as a legislator she supported some liberalization of abortion laws. Alito is more the speed of the FS these days.

Harriet Miers was opposed as unqualified but one wonders how her critics would have felt if they were more sure of her ideological priors.

While the Federalist Society was established in 1982, it movement of conservatives/libertarians started in the mid 1970s, about the same time as the originalism movement that came to fruition in the early 1980s under its hero Ed Meese. Was there cross-breeding? Were these two movements concerned with the civil rights movement post-Brown culminating with the mid 1960s Civil Rights Acts? Connect the dots? There was no competing coordinated group on the liberal/progressive side until more recently with ACS.

For some reason this brings to mind Will Rogers' "I am not a member of an organized political party. I'm a Democrat."

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