What is Judicial Courage?

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 50^th 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.