Hofstra Law Review
Abstract
Contemporary discussions of judicial courage are muddled. Despite a vast literature on virtue ethics, as well as a more specialized literature applying lessons from virtue ethics in legal contexts, discussions of courage feature malleable and imprecise conceptions of the term. This Article cuts through the mess by examining two particularly misguided accounts of judicial courage and demonstrating that they advance a vision of judicial contrarianism. Justice Clarence Thomas and Fifth Circuit Judge James Ho each portray judicial courage to involve judges facing down bad-faith critics, remaining true to their own visions of the law, and learning to embrace criticism rather than simply resisting it. These conceptions of courage result in closedmindedness—and, ironically, compromised independence—as judges begin to find personal satisfaction, professional benefits, and financial perks in goading on their purportedly disingenuous critics. These misguided visions of judicial courage aren’t entirely useless. Judicial contrarianism fills a gap in existing virtue jurisprudence literature that envisions courage as moderation between two extremes. One such extreme is cowardice, in which judges decide cases out of fear for popular or political reprisal. I argue that the other extreme is the judicial contrarianism of Justice Thomas and Judge Ho. Attention to judicial contrarianism contributes to virtue jurisprudence discussions by enriching existing conceptions of judicial courage and tying the virtue jurisprudence discourse to classic accounts of courage as moderation between extremes of cowardice and foolhardiness. This undertaking also sheds light on more effective, alternate conceptions of judicial courage that emphasize the importance of candor.
Recommended Citation
Smith, Michael L.
(2025)
"Judicial Courage, Contrarianism, and Candor,"
Hofstra Law Review: Vol. 53:
Iss.
3, Article 3.
Available at:
https://scholarlycommons.law.hofstra.edu/hlr/vol53/iss3/3