Zachary K. German and Robert J. Burton
The idea of humility as virtue and hubris as vice in the exercise of judicial power has been an enduring theme in American political and legal discourse. It knows no partisan, ideological, or historical boundaries. For that reason, it behooves us to pierce through its rhetorical uses and search for a more theoretical, more principled understanding of the concept.
January 2017 brought both the inauguration of a new president and the nomination of a new Supreme Court justice, Neil Gorsuch. Since that nomination, we have witnessed the episodic revival of public discourse about the criteria of a good justice. Much of that discourse revolves around how justices should treat specific areas of the law and how they should interpret the Constitution. It extends beyond these questions, however, to a consideration of the traits, dispositions, or “virtues” of a good jurist. Thus, President Obama famously highlighted the importance of “empathy” in his Supreme Court nominees, whereas Chief Justice Roberts alluded to the disinterestedness of an umpire. Among these qualities, the virtue of humility is the subject of perennial appeals.
In fact, humility has already been invoked a number of times since Gorsuch, described as a “vocal advocate for judicial humility,” has been nominated. Yet long prior to Gorsuch’s nomination, humility and its antithesis, “hubris” or “arrogance,” have regularly been employed as rhetorical shorthands to praise or excoriate the Court. Thus, one applauds Roberts’ humility in declining to undermine the Affordable Care Act in King v. Burwell, and another chastises the “arrogance” of Justice Kennedy for believing the Court can “shape the destiny of the country.”
The metric of humility and hubris has made its way into the justices’ own thinking about their jurisprudential role. They refer to it in confirmation hearings and even in their written opinions. Recently, this was readily apparent in Obergefell v. Hodges, where three of the four dissenters lamented the absence of humility in the Court’s reasoning. Yet the concept’s presence in the Court’s intellectual milieu is both long and diverse. Justice Frankfurter stressed the need for “an attitude of humility,” and Justice Brennan warned that originalism was “arrogance cloaked as humility.” Indeed, the anticipated hubris of the Court’s members was already a gnawing concern prior to the Constitution’s ratification; the Anti-Federalist Brutus, in his fifteenth essay, worried that justices would become so hubristic as to feel “independent of heaven itself.”
Legal scholarship has touched upon the concept of humility as a judicial virtue, as well, though without adequate theoretical development. Such development is necessary if we wish to move beyond the invocation of humility and hubris as proxies for approval or disapproval of Court nominees, like Gorsuch, and Court decisions. It also has the potential to inform the reasoning of judges (as well as elected officials, scholars, and citizens) in a richer manner than general appeals to, say, deference and restraint.
Judicial humility is not simply the opposite pole of judicial hubris; instead, it stands as a “golden mean” between judicial hubris and judicial servility.
Our first task must be to explicate the nature of humility as a judicial virtue. Unlike a set of constitutional positions or precedents, a judicial virtue does not provide concrete guidance for decisions in particular cases; rather, it is a disposition or manner of thinking appropriate to a given context. As a specifically judicial or constitutional virtue, it is institutionally bound, suited to a justice positioned within a well-defined constitutional framework. Humility’s application will frequently be contestable, though it should at least foreclose some possible decisions. Thus, any claim that a judgment either exhibits or lacks humility is subject to contestation.
As a judicial virtue, we take constitutional humility to mean a certain disposition toward both oneself and others. As a disposition toward oneself, humility entails a recognition of one’s own limitations – the limitations of one’s ability to gain knowledge, of one’s interpretive method, of one’s competence, of one’s jurisdiction, etc. As a disposition toward others, humility signifies respect for the legitimacy of other legal authorities (e.g., Congress, the executive branch, democratic majorities, past generations of democratic majorities and supermajorities, the constitutional framers). This respect is derivative of the justices’ most fundamental commitment – to the delegation and limitation of power embedded in the Constitution, the very source of the justices’ legal authority.
Since this definition of constitutional humility stresses self-limitation, it is essential to understand its moderate nature. It is not simply the opposite pole of judicial hubris; instead, it stands as a “golden mean” between judicial hubris and judicial servility. If a justice’s awareness of his or her own limitations were extended to a logical extreme, the result would be a skepticism of all constitutional interpretation and judicial review. Likewise, if respect for other authorities in American life were absolutized, a servile deference would keep the Court from fulfilling its constitutional duty. Constitutional humility cannot exist within a vacuum of other constitutional principles; it must be defined, justified, and channeled by the constitutional ends which the Court is intended to pursue and uphold: the rule of law, limited government, liberty, the protection of rights, the separation of powers, etc. Ultimately, to be defensible, humility must serve to advance those ends.
Constitutional humility is thus distinguishable from related jurisprudential approaches with which it may sometimes be confused or conflated, such as restraint and deference. Humility guides justices when to restrain themselves – and when not – in a different way than would a straightforward principle of restraint. Humility is not an unwillingness to exercise judicial authority. It does not simply advocate deference, but provides the confines within which deference is appropriate. As such, it may always involve caution, but it is never merely the exercise of caution.
A humble judge would care little for her “legacy” or being “on the right side of history”; instead, she would focus on the Constitution’s proper application and enduring continuity.
Equipped with this definition, we can begin to explore constitutional humility in practice. We defined it as a disposition towards both oneself and others. In the judicial context, we call the inward dimension epistemological humility, and the outward dimension institutional humility. The two dimensions intertwine and overlap, but they are most clearly understood by distinguishing them from one another.
Epistemological humility refers to an awareness of limitations regarding one’s ability to acquire knowledge. The judicial role necessarily requires understanding and weighing evidence and fact as presented by plaintiff and defendant, as well as interpreting constitutional and statutory texts. In this role, judicial humility would require an adequate sense of the justices’ limits concerning what they can know with confidence. It would concur with Benjamin Franklin’s plea at the Constitutional Convention to “doubt a little of [one’s] own infallibility” and James Madison’s reminder in Federalist 37, that men “ought not to assume an infallibility in rejudging the fallible opinions of others.” A judge exemplifying constitutional humility would, for example, remain open to the limits of her interpretive method, whatever that method may be. Although as a virtue, humility is not dispositive, it would engender particular caution in 5-4 decisions, where a healthy understanding of one’s own fallibility may require a narrow decision over broad judgments or reversed precedents.
A humble justice would also acknowledge the limits of judicial competence. The constraints of the judicial process, the conventional training of justices, and the shaping influence of contemporary debates and consensuses all provide grounds for justices to limit the scope of their decisions. For example, in a judicial system that is entirely adversarial, a justice only has access to evidence from highly biased advocates – it has no independent research department. The British jurist Lord Devlin once explained how starting with “two prejudiced searchers” can actually be productive of impartial results. But this procedural mechanism obviously colors the discourse and deliberation possible from the bench. Moreover, a humble justice will recognize that he is rarely qualified as a doctor, social scientist, or philosopher, and that the judicial context is rarely conducive to rigorous scientific or philosophic activity. Thus, he will hew close to his judicial duties of weighing arguments and evidence pertaining to the law.
Whatever other objects may merit a judge’s humble disposition, “the People” seem to have placed the Constitution first.
Institutional humility encompasses the virtue’s outward orientation, locating the judge in relation to his fellow constitutional actors and towards the Constitution itself. When we say a justice ought to be humble, we must inquire, “humble in relation to what and/or whom?” We are not demanding humility in a judge’s personal life or personal interactions; rather, we ask what specific objects merit a judge’s humble disposition in the constitutional context.
In a political order where a judge receives his authority via “the People” through a written constitution, that which merits a judge’s humble disposition, first and foremost, would seem to be the Constitution itself. As a result, a justice’s actions would center on and find their meaning in it. A humble judge would care little for her “legacy” or being “on the right side of history”; instead, she would focus on the Constitution’s proper application and enduring continuity.
One could argue that, because the Constitution is an instrument of “We the People,” the source of a judge’s authority and the ultimate object deserving his humility would be found in some conception of the popular will. Were this the case, a humble judge would cede controversial constitutional questions to the general public, as manifested either through the people’s elected officials or, more directly, through public polling. Yet if one considers the Constitution as the manifestation of the people’s will, one discovers that “the People” have bound justices to the Constitution rather than directly to themselves. For example, Article VI declares “this Constitution” to be “the supreme Law of the Land.” If “the People” wish to alter their supreme law, they compel themselves to do so in a specific way in Article V, requiring much more than popular majorities. “The People” even require in Article VI that every justice be “bound by Oath or Affirmation, to support this Constitution” (emphasis ours). Whatever other objects may merit a judge’s humble disposition, “the People” seem to have placed the Constitution first.
Following from the Constitution, some degree of humility would be required toward the other constitutionally authorized powers, such as the executive branch, the legislative branch, state governments, and even the precedent-setting authority of prior Supreme Courts, for each of these play a part in the same constitutional order and are granted by the same supreme authority. But which of these many commitments deserve our humble disposition the most? What if two conflict? The interplay and potential conflict between these various constitutional priorities are the core of most debates relating to judicial authority and constitutional interpretation. Yet however this conflict is best resolved (and we cannot begin to resolve it here), competing constitutional commitments, each of which lay claim to a humble disposition, are not manifestations of humility’s unhelpfulness as a constitutional virtue. On the contrary, a more rigorous understanding of humility points to the need for continued debate about the relative hierarchy and necessary complexity of these commitments.
Constitutional humility leads us to adjudicate between ends and principles that may come into conflict. A fuller theoretical development of this judicial virtue, which we plan to pursue in future research, must engage the competing conceptions of what humility entails for judicial reasoning. Otherwise, constitutional humility will remain too indeterminate to be a useful guide for jurisprudence. Justice Thomas may consider himself humble towards the framers and their original intentions, while Justice Brennan might counter with a humility toward the broader aims of the Constitution. Justice Scalia might deem himself humble toward precedent and those who promulgated it, whereas Chief Justice Roberts, Justice Holmes, or Justice Frankfurter may view themselves as humble vis-à-vis the coequal branches of the federal government and the democratic majorities who elected those other branches. Because humility involves multiple constitutional commitments, it is essential to clarify the way these facets relate to one another.
However, in keeping with our subject, we have intended our claims in this essay to be modest: the idea of humility as virtue and hubris as vice in the exercise of judicial power has been an enduring theme in American political and legal discourse. It knows no partisan, ideological, or historical boundaries. For that reason, it behooves us to pierce through its rhetorical uses and search for a more theoretical, more principled understanding of the concept. As we continue to grapple with the proper role of a judiciary and the proper character of a justice in a constitutional democracy, including amidst Judge Gorsuch’s nomination, such an examination can only prove salutary.
Zachary K. German and Robert J. Burton are doctoral students in the Constitutional Studies program at the University of Notre Dame. German will be Assistant Professor of Politics in the School of Civic and Economic Thought and Leadership at Arizona State University beginning in August 2017.