Read Judge Rosenthal’s 2019 Hallows Lecture at Marquette University Law School
It’s entirely fitting that Judge Lee Rosenthal delivered this thoughtful lecture at Marquette Law School. The idea that lawyers and judges should be aspirational—that they should search for “something more” than “the quotidian facts and problems of specific matters, disputes, or cases”—has a religious parallel in the concept of magis in Ignatian spirituality. So her message was bound to find fertile ground at a Jesuit law school that takes its mission seriously. And it did.
Judge Rosenthal’s theme is the distinction between ambition and aspiration in the study and practice of law, in legal scholarship, and in judging. She defines ambition as the desire “to acquire what we already value” and aspiration as “purposeful action directed at acquiring new values.” Within that broad framework, she focuses on one aspect of ambition: “the desire for external validations that you already know you want,” most notably recognition, promotion, and material reward. She contrasts it with a conception of aspiration that in the abstract describes a process of personal growth characterized by constant and self-conscious striving toward new values or understandings. When made more concrete, however, aspiration (as she uses the term) seems to be a higher form of ambition—one driven by the desire to hold to our core values—coupled with the practice of humility. As applied to judging—her domain and mine—she explains the dichotomy between ambition and aspiration by using three cases with particular contemporary political and legal salience. Each one illustrates the virtue of judicial humility.
Two aspects of judicial humility are at play in Judge Rosenthal’s case studies. One is situational humility, which requires the judge to consider what he does not know about the case at hand. Her first two examples measure this aspect of judicial humility by its absence. How can the concurring Fifth Circuit judge be so certain that the district court was motivated by antireligious animus? Why does the Ninth Circuit panel so confidently declare a new legal rule in a deeply unsettled area of the law and so blithely rely on its own factual assumptions instead of deferring to the findings of the district judge, made from her superior vantage point in the trial courtroom?
The second dimension of judicial humility is institutional. In its most basic form, the judge’s role is to correctly apply the relevant legal rule to the established facts in accordance with accepted procedures. Institutional humility requires sensitivity to the constitutional constraints on the judicial role and the norms of our hierarchical judicial system. Appellate judges should refrain from ascribing improper motives to their district court colleagues. All judges should guard against the temptation to overread loosely related precedents in order to constitutionalize a preferred answer to a sensitive social question, thus removing it from the democratic process. Institutional humility confines the judge to his core competencies.
Judge Rosenthal’s third case—the concurring opinion in the Sixth Circuit’s Affordable Care Act case—is meant to illustrate aspirational judging at its finest. The opinion is indeed a powerful example of Judge Jeffrey Sutton’s principled jurisprudence. It also highlights the virtue of judicial humility, both situational and institutional. At the same time, it reflects a loftier form of ambition operating as a check on the lower form. Judge Sutton’s commitment to rule-of-law norms isn’t new to him; it’s central to his conception of the judicial role. It’s not evolutionary; it’s his fixed compass. He took the politically unpopular course precisely because fidelity to the rule of law is deeply entrenched among his core values, not because he was seeking new understandings about the law or the judicial role in administering it. He has firm convictions about the normative constraints on the judiciary in our system of self-government, and his commitment to following those principles prevailed over any more self-interested ambitions.
Judge Rosenthal delivered a uniquely inspirational Hallows Lecture, and her uplifting message has enriched the entire Marquette Law School community.
This response and the 2019 Hallows Lecture were first featured
in the Fall 2019 issue of Lawyer Magazine
Diane S. Sykes, L’84, is a judge of the U.S. Court of Appeals for the Seventh Circuit.
She served as a justice of the Wisconsin Supreme Court from 1999 to 2004.
