Read Judge Rosenthal’s 2019 Hallows Lecture at Marquette University Law School
It is quite daunting to discuss a thoughtful tome written by a respected judge, particularly one as senior and intellectually acute as Judge Lee Rosenthal. It is even more daunting to limit that discussion to approximately 600 words, a shorter amount than is usually required for a law professor to say “hello.” For those reasons, I shall limit my remarks to some caveats concerning Judge Rosenthal’s discussion of the judicial goals of ambition and aspiration.
Judge Rosenthal summons the spirit of Justice Oliver Wendell Holmes to argue that judges seek (and perhaps should seek) the twin goals of ambition and aspiration. Ambition, according to Judge Rosenthal, is “the desire for external validations that you already know you want.” For judges, that could mean a variety of goals: appointment, reelection, promotion, wealth, and being well thought of within the legal community. Citing Justice Holmes, Judge Rosenthal believes that ambition is healthy: It gets us where we are: judge, lawyer, dean, or the best job in the world, law professor.
Yet I am inclined to be wary of ambition as a laudable goal. While judges subjected to the whims of the voting public must take greater care in external validation or else lose their jobs, ambition always comes at a cost. For lifelong appointees, I think the interest in becoming well known, popular, and well thought of can (though not necessarily will) be in conflict with the ultimate goals of law.
As an example, consider some of the Supreme Court cases commonly thought to be the worst decisions of all time: Korematsu v. United States (1944), Dred Scott v. Sandford (1857), Buck v. Bell (1927), Plessy v. Ferguson (1896), and Citizens United v. Federal Election Commission (2010) all come to mind. In each decision, I imagine that the Court held fast to contemporaneous notions of right and wrong, notions that history has shown to lead to disastrous results.
Worse, the search for external validation is Sisyphean, a matter that my coauthor and I explored last year with respect to the law professoriate (50 Loy. U. Chi. L.J. 327). As a famous television show, Northern Exposure, once lamented, “You’re dealing with the demon of external validation. You can’t beat external validation. You want to know why? Because it feels sooo good.” In other words, external validation is like a drug, and once a goal is achieved, then other goals will be required to get the next “hit.” Those “hits” cannot come from everyone: Judging leaves at least one party unhappy. And maybe on good days, it leaves both sides unhappy.
A judge making decisions in search of external validation could instead favor a party or follow perhaps-misguided views of public opinion. And some Supreme Court decisions run contrary to the goal of external validation from the masses. Seeking to protect those who are “exceptionally affected” or “discrete and insular minorities” comes to mind, to use the familiar terms from the Supreme Court’s decision in Bi-Metallic Investment Co. v. State Board of Equalization (1915) and, of course, its footnote 4 in United States v. Carolene Products Co. (1938). Justice Holmes suggested, and Judge Rosenthal concurs, that ambition is insufficient. I am in agreement.
The aspirational goal is trickier. Judge Rosenthal proclaims that “[o]nly when we judges are aspirational do we deserve, and are we likely to get and to keep, ‘the consent of the governed.’” The problem is that consent of the governed assumes a more cohesive electorate. While judicial appointments have always been political, they are increasingly so. And, in my opinion, as judges become more tethered to the aspirational goals of their respective political football teams, the less likely that society will be better off.
While Judge Rosenthal cites Justice Holmes, I turn to another handy reference: Judge Learned Hand. In “The Contribution of an Independent Judiciary to Civilization,” Judge Hand stated that “a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.” This is the greatest concern I have about the judiciary. The politicization of the judiciary will ultimately lead to the ruin of the independent judiciary.
Instead, I would love to have a judiciary filled with a diverse group of humble, independent thinkers such as Judge Rosenthal. I fear that is not the direction we are heading. As it seems now, the goals of ambition and aspiration will blend into a unitary goal that “our side must win.” Over the long run, this assures that no one wins.
This response and the 2019 Hallows Lecture were first featured
in the Fall 2019 issue of Lawyer Magazine
Darren Bush is the Leonard B. Rosenberg Professor at the University of Houston Law Center.
