Caron on Judicial Humility

With Judge Roberts' confirmation hearing in full swing, the lead story in today's Legal Times is Roberts Pledges Judicial Humility in Opening Remarks:

Chief justice nominee John Roberts Jr. opened his Senate confirmation hearing testimony Monday with a brief but powerful pledge of judicial humility, fair-mindedness and respect for precedent....

Roberts said, "Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath."

I made the same point in an op-ed with my colleague Rafael Gely in The National Law Journal, A Need for Judicial Humility:

Judicial humility is neither liberal nor conservative. It recognizes that judges and lawyers hold no monopoly on wisdom; in certain situations, institutions other than courts may be better positioned to resolve a particular issue.

Judicial humility manifests itself in a number of ways, including a recognition that not all dumb laws are unconstitutional or need to be rewritten by judges. One mark of a humble judge is that he not infrequently implements laws he neither would have passed (as a legislator) nor enforced (as a bureaucrat) in the first place.

A humble judge recognizes that he or she has neither the power of the purse nor the power of the police. Instead, a judge's authority comes from the power of persuasion-the public's recognition that there is something special about judges that separates them from legislators and bureaucrats.

In mediating power struggles among varying institutions, groups and individuals, judges employ various legal tools of the trade that distinguish their actions from those of legislators and bureaucrats. The humble judge takes seriously constraints such as the language of constitutional and statutory texts, legal doctrine and precedent in deciding individual cases.

In recent years, however, the U.S. Supreme Court has strayed far from a jurisprudence of humility and instead embraced a result-oriented jurisprudence that has run roughshod over these traditional constraints. Both the liberal and conservative wings of the high court have engaged in this practice, turning these tools of the trade into nothing more than cover for judicial decisions reached on other (often undisclosed) grounds.

We expand on the virtues of judicial humility in our recent article, Affirmative Refraction: Grutter v. Bollinger Through the Lens of The Case of the Speluncean Explorers, 21 Constitutional Commentary 63 (2004).  Here is part of the abstract:

The Article introduces a novel jurisprudential approach to judicial decision-making -- what we refer to as a "jurisprudence of humility." Building on the recent work of ideologically diverse scholars, we argue that a jurisprudence of humility recognizes that judges and lawyers hold no monopoly on wisdom and that, in certain situations, institutions other than courts may be better positioned to resolve a particular issue. This jurisprudence of humility construct enables us to draw some rather surprising connections between The Case of the Speluncean Explorers and Grutter v. Bollinger and span the gulf in the legal literature between statutory construction and constitutional interpretation.