The Texas Review of Law & Politics printed my new article, Judicial Courage. Here is the summary.
What is judicial braveness? Supreme Court Justices typically accuse their colleagues of missing fortitude, however they seldom clarify what this idea means. This Essay supplies a short discourse about judicial braveness. Part I considers how Justices on the Supreme Court have used this advantage—each to reward and to criticize. Part II makes an attempt to outline judicial braveness. Part III applies these ideas to selections of the decrease courts.
I wrote this text lengthy earlier than the Dobbs leak, and added a postscript on the difficulty:
I started penning this Article in December 2021, shortly after Dobbs v. Jackson Women’s Health Organization was argued. In subpart III.A, I mentioned how judicial braveness in the decrease courts might have trickled up, and given the Supreme Court the fortitude to grant evaluation in Dobbs. That was all I deliberate to write down in regards to the pending abortion case. Given the publication schedule, I anticipated that Dobbs could be determined after this Article went to print. However, the unprecedented leak of Justice Alito’s draft majority opinion modified these plans. Here, I can’t speculate on how the draft opinion leaked. Nor will I enterprise any predictions about how the Supreme Court will finally resolve Dobbs. To quote Yogi Berra, “It ain’t over, until it is over.” Or to paraphrase Chief Justice Roberts, “Don’t depend your holdings earlier than they hatch.”
Rather, I’ll finish this Article by quoting from Justice Thomas’s remarks on the Old Parkland Conference in Dallas, Texas, on May 13, 2022.A member of the viewers requested Justice Thomas to outline stare decisis. He responded:
I feel there was a phrase that was used as we speak. That was actually fascinating, as a result of I feel it is a central phrase, and it is “braveness.” The means that Walter Williams did it in considered one of his books from the Eighties is “All It Takes Is Guts.” And I feel lots of people lack braveness, like they know what is correct, and so they’re scared to demise of doing it. And then they provide you with all these excuses for not doing it. So even with stare decisis, you will note in numerous these situations the place individuals begin, they run out of arguments. I all the time say when somebody makes use of stare decisis, which means they’re out of arguments. And now they’re simply form of waving the white flag. And then that is I simply preserve going then. I feel when you have an argument, you make it, however I’m not going to go together with one thing. If you purchase that argument then Plessy ought to by no means have been overruled. I imply, you can’t overrule Plessy and whenever you increase that with them, then they do not they nicely, they offer you err, ahh, err, ahh, err, ahh.
Was Justice Thomas suggesting that a number of of his colleagues lack the braveness to overrule Roe v. Wade? I have no idea. But right here, Thomas channels numerous dissents he authored or joined, in which he faulted the Court for missing judicial braveness. Soon sufficient, we are going to discover out if the Justices who’re “out of arguments” are “scared to demise” of overruling Roe.