Yesteday, Orin Kerr reiterated his typically cynical* conception of the law and values, when he said that “the definition of a ‘courageous’ judicial decision” is one which “stretches the law but nicely matches the observer’s policy preferences.” Neither end of this assertion is true, except insofar as Kerr is really just asserting that “courage” is a word that means nothing more than an emotional approval of an action.
First, a judge can be, and many have been, praised as courageous for decisions that do not stretch the law at all, but accurately apply existing law in a way that (for sake of argument) “matches the observer’s policy preferences.” For example, in the 19th century, Chinese immigrants in California sometimes sued cities for damages arising from anti-Chinese race riots. Courts at times decided in their favor, applying what was clearly basic black-letter tort law in a way that was certainly unpopular among whites at the time, but which “matches” our “policy preferences.” We would certainly call such decisions courageous—given the nearly hysterical level of racial hatred with which the Chinese were regarded by the white elites at the time—which shows that it is not necessary to “stretch the law” to reach a “courageous” decision.
Second, it is not true that a “courageous” decision is necessarily one that nicely matches our policy preferences. Many actions and individuals are considered courageous despite the fact that their actions are contrary to our own views. Confederate soldiers in the Civil War, for example, are routinely honored (rightly so, I believe) for their courageous actions, even by those of us who regard the Confederacy as a profoundly evil episode in American history. A common theme in western literature is to praise the courage of those with whom we differ—consider Hector in The Iliad, whose courage Homer praises even though Homer is “pro-Achaian.”
It’s quite easy to imagine a judge issuing a decision that we would consider “brave” even if we would differ from it for one reason or another. I have always thought DeShaney v. Winnebago to be a courageous decision because it would have been so easy for the Court to rule in favor of the Plaintiff, whose story is so heartbreakingly compelling. And, in fact, I do believe the case was wrongly decided. (I am opposed to the policy of government immunities generally.) But I believe it was difficult for the majority to stick to its principles in light of the circumstances, and it therefore qualifies as brave even though I disagree with the ultimate result. I strongly disagree with the idea of publishing secret documents, but there is no question that the decision in the Pentagon Papers case was a brave one for the Court to make. Shelley v. Kramer was a brave decision, even though it makes for pretty indefensible law. Shelley isn’t a perfect example, since I do agree with the ultimate goal of eliminating racial discrimination in the marketplace (although it does not “nicely” match my policy views)—but then that gets us to the deeper question of whether we regard something as “courageous” if it is not ultimately morally praiseworthy. Were the September 11th hijackers “courageous”? Certainly we’ve called them “cowardly” often enough. But if that is Kerr’s point—if his position is that “courage” is a meaningless word that only expresses a (fundamentally irrational and emotionalistic) approval, he ought to say so, because that is a different assertion. His actual assertion, that a judicial decision is one that (a) stretches the law, and (b) matches our policy preferences, is false.
*-Not really; even the actual Cynics believed in the possibility of virtue.
Update: Prof. Kerr responds via email,
My one-sentence post was meant as a criticism of those who celebrate controversial judicial decisions as "courageous" simply when they like the decision, without really thinking of whether the decision is actually courageous. It was not an endorsement of the practice.
